Best Plumbing Supply

National Labor Relations Board - Board Decisions

Jan 15, 1993

310 N.L.R.B. 143 (N.L.R.B. 1993)

143
310 NLRB No. 25
BEST PLUMBING SUPPLY
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative 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 reversing the findings.
3 Beigert was hired as a backup driver/warehouseman in Sep-
tember 1990, and began organizing the employees in the warehouse
almost immediately. Shortly thereafter, the Respondent became
aware that there was talk of union representation, but denied knowl-
edge of any union activity on Beigert’s part.
4 All dates are in 1990, unless otherwise indicated.
5 The Respondent’s assertion on brief that the discharge occurred
several hours later is not supported by credited testimony.
Best Plumbing Supply, Inc. and Local 456, Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Case 2–CA–24805
January 15, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 15, 1992, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions, a brief in
support of the administrative law judge’s decision, and
an answering brief in response to the Respondent’s ex-
ceptions and in support of the General Counsel’s cross-
exceptions. The Respondent then filed an answering
brief in reply to the General Counsel’s cross-excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order.
The judge found, inter alia, that the Respondent dis-
charged employee Brett Beigert because of his union
activities, in violation of Section 8(a)(3) and (1) of the
Act. In its exceptions, the Respondent argues that the
General Counsel failed to show that its decision to dis-
charge Beigert was in any way motivated by unlawful
animus, or that it even had knowledge of any union
activity in which Beigert might have been involved.
The Respondent asserts further that even if the General
Counsel made out a prima facie showing of discrimi-
nation, the Respondent has demonstrated that legiti-
mate business considerations were in fact the reason
for Beigert’s discharge.3 For the reasons that follow
we find no merit to the Respondent’s exceptions.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), the Board explained
its causation test for cases alleging violations of the
Act that turn, as does this case, on employer motiva-
tion. First, the General Counsel must establish a prima
facie showing sufficient to support an inference that
the protected conduct, such as an employee’s union ac-
tivity, was a motivating factor in the employer’s deci-
sion. The elements commonly required to support a
prima facie showing of discriminatory motivation
under Section 8(a)(3) are union activity, employer
knowledge, timing, and employer animus. Once such
prima facie unlawful motivation is shown, the burden
shifts to the employer to demonstrate that it would
have taken the adverse action against the employee
even in the absence of the protected activity. It is with-
in this framework that we analyze the evidence, the ar-
guments of the parties, and the judge’s findings con-
cerning Beigert’s discharge.
We agree with the judge that the General Counsel
has demonstrated that the Respondent had knowledge
of Beigert’s union activity. It is undisputed that at a
meeting the Respondent called with employees on No-
vember 9, 1990,4 to express its opposition to Team-
sters representation of its warehouse personnel, em-
ployee Vivello got up and made several antiunion
statements. Beigert took issue with Vivello’s state-
ments, explaining that the Union would not prevent
drivers from delivering to nonunion firms as Vivello
had contended, but would only prohibit deliveries
across picket lines. Warehouse Manager Leadbitter tes-
tified that Beigert sounded very ‘‘professional’’ when
he spoke, as well as ‘‘very direct,’’ ‘‘very well-spo-
ken,’’ and that ‘‘he understood what he was saying.’’
Beigert was discharged approximately 30 minutes after
this meeting ended.5
Although the Respondent does not concede that
Beigert’s comments were prounion, we find that his
comments in rebuttal to Vivello’s antiunion remarks
sufficed to disclose to the Respondent where his union
sympathies lay, namely, that he supported the Union.
The meeting in which Vivello’s and Beigert’s com-
ments were made was held by the Respondent to com-
bat the Teamsters’ efforts to organize the employees
and not for the general purpose of holding a forum on
the pros and cons of unionization. That being so, we
conclude that all in attendance likely understood that
any comments made by employees for or against
unions represented not only the employee commenta-
tor’s views about unions in general, but his sympathies
toward the Teamsters and its campaign to represent the
employees as well. Here, that understanding was
heightened by the fact that, among the employees, only
Beigert disagreed with Vivello’s antiunion remarks. In-
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Darbar Indian Restaurant, 288 NLRB 545 (1988); see also Ab-
bey’s Transportation Services, 284 NLRB 698 (1987), enfd. 837
F.2d 575 (2d Cir. 1988).
7 The effect of a pretext finding is to leave intact the discrimina-
tory motive established by the General Counsel. See, e.g., Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. sub nom. NLRB v.
Limestone Apparel Corp., 705 F.2d 799 (6th Cir. 1982).
8 The Respondent asserts that Beigert was originally hired to re-
place employee Hardy, who had given notice, and that when Hardy
decided to stay, it decided to lay off Beigert because an additional
backup driver was not needed and because economic conditions ne-
cessitated cutbacks. The Respondent failed to call Hardy as a witness
to corroborate any of its assertions in this regard. Beigert testified
that it was not his understanding that his tenure was conditional on
the tenure of Hardy.
deed, employee Albury testified that he was aware that
Beigert was speaking in defense of the Union, as
Beigert’s own testimony confirms. In this regard, we
also note that both Leadbitter and Respondent’s co-
owner Weiner, while testifying that they could not re-
call what Beigert actually said, acknowledged that
Beigert had disputed the antiunion comments of
Vivello.
In any event, we find, as did the judge, that even
if the Respondent did not obtain direct knowledge of
Beigert’s union activities from his comments at the
November 9 meeting, the totality of the circumstances
supports an inference of knowledge. Those cir-
cumstances include the Respondent’s general knowl-
edge of union activity among its small group of em-
ployees, Beigert’s comments in contradiction of
Vivello’s antiunion remarks at the meeting, the sum-
mary discharge of Beigert and its suspicious timing,
the Respondent’s contemporaneous 8(a)(1) conduct,
and the absence of any incident or conduct involving
Beigert that would explain his sudden discharge.6 Fur-
ther, that inference has not been rebutted by the Re-
spondent because the judge discredited the testimony
of Leadbitter and Weiner that economic considerations
motivated their decision to discharge Beigert.
The General Counsel has also demonstrated Re-
spondent’s animus toward the Union. In addition to the
Respondent’s lawful statements indicating that it was
absolutely opposed to the Union, Leadbitter also made
unlawful threats to a group of four employees that if
the shop became unionized, there would have to be
timeclocks and more strict procedures, and that such
procedures could result in employees being replaced.
The judge found, and we agree, that these statements
violated Section 8(a)(1) of the Act. The Respondent’s
animus was further demonstrated by Leadbitter’s ques-
tioning of Beigert in October about who was behind
the Union, whether he was involved in the Union, and
whether anyone had approached him about the Union.
The judge found, and we agree, that this constituted
unlawful interrogation, also in violation of Section
8(a)(1). These violations more than meet the General
Counsel’s burden of proof on the animus issue. Having
shown knowledge, animus, and that the discharge hap-
pened immediately after the Respondent apparently
gained knowledge of Beigert’s union support, the Gen-
eral Counsel has made out a prima facie case that
Beigert’s union sympathies were a motivating factor in
the discharge decision.
With respect to the Respondent’s asserted economic
defense, the Respondent claims that during 1990 it was
facing increasingly adverse economic conditions which
necessitated companywide cutbacks. The Respondent
further contends that at the time it discharged Beigert,
it had neither the need nor the justification for retain-
ing two backup drivers on its payroll, and that
Beigert’s discharge was part of its plan to scale back
its operations and to adjust staff to reflect the difficult
economic times. In this regard, Leadbitter and Weiner
testified that they had decided to discharge Beigert be-
fore the November 9 meeting at which Beigert spoke
up to rebut Vivello’s antiunion remarks.
For the following reasons, as well as those set forth
by the judge, we find that the Respondent’s asserted
reasons were used as a pretext to discharge Beigert for
his union activities.7 The judge discredited Leadbitter’s
and Weiner’s testimony regarding when they decided
to discharge Beigert and that their decision was eco-
nomically motivated. That adverse credibility resolu-
tion in itself seriously, if not entirely, undermines the
Respondent’s defense; in any event the remaining as-
pects of the Respondent’s proffered defense cannot
withstand scrutiny.
For example, Weiner asserted proudly to employees
at a November 5 meeting that the Respondent had
managed to get through some tough economic times
without a single layoff, and that in fact it had brought
on four new people since September. Consequently,
the Respondent’s assertion that laying off Beigert sud-
denly became a pressing financial necessity only 4
days later is inconsistent with Respondent’s stated pol-
icy and its practice. Further, Beigert was the only em-
ployee laid off; and in laying him off the Respondent
failed to follow its policy of letting employees finish
out the workweek, because Beigert was discharged on
Friday, right after lunch, a scant 30 minutes after mak-
ing his prounion sentiments known publicly.8
Although the Respondent accurately asserts that its
staffing levels dropped in 1990, the evidence indicates
that this was the result of attrition and not layoffs. In
a document introduced at trial (the notes used by
Weiner during a meeting held with employees in the
late spring of 1990), Weiner sets forth his plan for
down-scaling, which includes several cost-cutting
measures (such as elimination of services not needed
to attract customers, and shifting employees within the
organization). Laying off workers was specifically re-
145BEST PLUMBING SUPPLY
9 Also rejected were reductions in salaries, shortening the work-
week, and compelling employees to take early retirement.
10 The Respondent admitted that Hardy was not in line for a full-
time driver position (as was Beigert), because Hardy ‘‘was not expe-
dient enough. He took too long making his calls. He took too long
on the road.’’
jected as a means of reducing costs.9 Further, minutes
of a staff meeting held on October 25, only 2 weeks
before Beigert was discharged, do not mention the ne-
cessity of a layoff or that the Respondent was even
considering layoffs as a possibility.
We also note that Beigert, although probationary,
was considered to be an excellent employee, and had
been told that he was in line for a raise and promotion.
Employee Hardy, on the other hand, who was retained
as a backup driver instead of Beigert (on the theory
that he was more senior), was not nearly as well-re-
garded, had been demoted in the recent past, and was
known to be unhappy in his employment with the Re-
spondent. Even employee Rawlings, hired as a ware-
houseman after Beigert, would seem to be a more log-
ical choice to be laid off, as he had no experience
driving and had the least amount of seniority. Thus, it
would seem that, of the three of them, the Respondent
discharged the employee with the best work record and
the greatest flexibility in that he could capably perform
both driving and warehouse tasks, unlike either
Hardy10 or Rawlings.
In sum, we find that the General Counsel has estab-
lished that Beigert was terminated for his union activi-
ties and that the Respondent has not demonstrated that
it would have discharged Beigert in the absence of
such activities. We therefore agree with the judge that
the Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Beigert.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Best Plumbing Supply,
Inc., Yorktown Heights, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Suzanne K. Sullivan, Esq. and David E. Leach III, Esq., for
the General Counsel.
Andrew A. Peterson, Esq. and Richard D. Landau, Esq.
(Jackson Lewis Schnitzler & Krupman), for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on February 10 and 11,
1992. The charge and amended charges were filed on De-
cember 7, 1990, and April 25 and June 27, 1991. The com-
plaint was issued on September 17, 1991. In substance, the
complaint alleges:
1. That in or about October 1990, the Respondent by one
of its owners, Jesse Weiner, told employees that it would be
futile to select a union and that the Respondent would never
sign a contract if they did.
2. That in or about October 1990, Respondent by its ware-
house manager, David Leadbitter, interrogated employees,
solicited grievances, threatened to discharge employees, and
threatened to impose more onerous conditions on them if
they supported the Union.
3. That on November 9, 1990, the Respondent discharged
Brett Beigert because of his activities on behalf of the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The employer is engaged in the retail and nonretail sale
of plumbing and related products. Its main place of business
is located in Yorktown Heights, New York, and it also oper-
ates showrooms in other New York locations. The warehouse
is located in Yorktown Heights and this is the locus of the
events of this case.
Brett Beigert, the alleged discriminatee, was hired as a
warehouse worker and backup driver in late August 1990.
According to company witnesses Jesse Weiner and David
Leadbitter, Beigert was hired to replace another employee,
Hardy, who worked in this same job category and had given
notice that he was going to leave at some unspecified time
within a month.
Soon after beginning work, Beigert contacted the Union
and began organizing the employees in the warehouse. In
this respect, he solicited and obtained authorization cards
from a sufficient number of warehouse employees to enable
the Union to file a petition for election on October 30, 1990.
Beigert’s testimony was that he was the employee who was
most active in supporting the Union. At the same time,
Beigert did his job and the Employer concedes that he was
an excellent worker.
Chris Albury, another warehouse employee testified that in
September Leadbitter called him, Lance Lindsey, Randy
Hardy, and Wendell Williams into the warehouse office. Ac-
cording to Albury, Leadbitter said that if a union came into
the plant, they would have to have timeclocks and more
strict procedures. He states that Leadbitter said that the em-
ployees could be replaced and that he asked them if they had
any questions. According to Albury, he stated that he was
dissatisfied with his evaluation. He doesn’t recall what
Leadbitter responded.
Leadbitter, the warehouse manager, although denying that
he had any knowledge of Beigert’s union activities, did con-
cede that in September 1990, he became aware that there
was talk of union representation among some of the ware-
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
house employees. He testified that three of the employees,
Lindsey, Hardy, and Williams made evident (albeit in an im-
plied way) their union sympathies. He also testified that on
various occasions before October 20, 1990 (when he went on
vacation), he had conversations with Romano, a warehouse
supervisor, wherein they speculated as to which employees
might or might not favor unionization. Finally, Leadbitter
testified that sometime in September 1990, he told Jesse
Weiner of this talk and that he was told to keep his ears
open.
Beigert testified that toward the end of October 1990,
Leadbitter, in the warehouse office, asked him if he was in-
volved in the Union; who was behind the Union; and if any-
one had approached him about the Union. Beigert states that
he responded that he didn’t know anything about the Union.
Beigert also testified that in October 1990, he was told by
Leadbitter that he soon would be promoted to a regular driv-
er’s position with a raise in pay.
As noted above, the Union filed a petition for an election
on October 30, 1990, in Case 2–RC–20975, wherein the
Union sought to represent the employer’s drivers and ware-
housemen employed at the Yorktown Heights facility. (It ap-
pears from the record that the employer retained labor coun-
sel before the Petition was filed). In any event, Jesse Weiner
gave speeches to employees regarding the prospect of union-
ization. The relevant ones are the speeches given to the
warehouse employees on November 5 and 9, 1990.
Beigert testified that at the first of these speeches, Weiner
stated among other things that he did not like the Teamsters
and would not sign a contract under any circumstances if the
Union won an election. Beigert also recalls that Weiner said
that his door was open and that if employees had any ques-
tions they could come talk to him. On cross-examination,
Beigert was not as certain as to the words used by Weiner
and it is probable that he misconstrued the actual statements
made. In this respect, Albury’s testimony was consistent with
the testimony of Weiner who stated that he said that he had
a copy of a contract in his hand and said that he would not
sign that particular contract. As Weiner credibly testified that
he basically read from a speech which was reviewed by his
attorney, the written text was received in evidence. It stated
in pertinent part:
A. We are absolutely opposed to having the Team-
ster Local 456 represent you, our employees; and will
exercise all of our legal rights to keep them out of our
joint futures.
1. Over the next few weeks we will share with
you information on why this or any union would
hinder the success of this company and curb its
growth.
B. Its important for us all to understand that this
‘‘is’’ Best against the Local 456—Not you against us.
We will work very hard with all of you over the next
few months to enlist your support to defeat this union’s
intrusion. Our wish is to keep Best as a competitive and
growing force in our marketplace, offering continued
opportunities for you and your families.
C. We promise to keep our information true and ac-
curate, and hopefully correct any misinformation you
may receive elsewhere. Please come to us . . . to con-
firm, deny or explain any of the promises you will un-
doubtedly hear.
. . . .
E. Facts
1. Local 456 will/has been showing you Teamster
contracts with wonderful pay rates. Ask Local 456 if
they can guarantee you those or any pay rates.
3. . .
7(a) We have carried ourselves through this miser-
able economy without a single layoff. In fact four of
us have come on board since Sept. Ask Local 456 how
many members of theirs have been laid off.
At the speech given by Weiner on November 9, he in-
formed the employees that there was going to be a con-
ference at the offices of the NLRB to discuss election eligi-
bility issues. He again expressed the Company’s opposition
to Local 456. In this speech, Weiner, referring to a Local
456 contract, stated:
After reading this through I can assure you that if
asked by the Union to sign this contract, we would not.
As we told you Monday, Local 456 cannot and will not
guarantee you the rates in this document. I did note,
when reading this contract through that Local 456
would want us as employers to deduct $.50 an hour
from your wages for their local dues. It went on to re-
quest that if you failed to join the union or remain a
‘‘member in good standing’’ (pay your dues) that we
terminate your employment.
During the November 9 meeting one of the employees,
Paul Varello, made a number of antiunion statements includ-
ing a statement that the Union would or could prevent the
company’s drivers from delivering to nonunion customers.
According to Beigert, he responded to these comments, stat-
ing that this was not so and that the Union would only pre-
vent drivers from making deliveries across a picket line.
Weiner and Leadbitter testified that they could not recall the
actual dialogue between Varello and Beigert. They did con-
cede, however, that they construed Varello’s comments as
being antiunion and that Beigert made some kind of reply.
In Leadbitter’s words, it looked as if there was going to be
an explosion between the two employees and that Weiner in-
tervened stating that Beigert was correct.
About a half hour after Weiner’s November 9 speech,
Beigert was laid off. The notice of layoff stated:
Reason For Termination: Manpower cutback due to
market. Due to the continuing drop in market condi-
tions, we find it necessary to eliminate further positions
in the company. Among these positions is the position
of backup driver. We no longer have the need for (2)
two backup drivers. Therefore we must drop the least
senior of these positions.
The Company concedes that Beigert was an excellent
worker and does not assert that he was discharged for any
misconduct. Rather, it asserts that Beigert was originally
hired to replace Hardy, who had given notice, and that when
Hardy decided to stay on the job, the Company decided to
147BEST PLUMBING SUPPLY
lay off Beigert because he no longer was needed and because
economic conditions necessitated cuts in costs.
As noted above, the employer basically asserts an eco-
nomic defense. Weiner testified that the company’s business
slowed down in 1989 and the full import of the downturn
was not apparent until he received his accountant’s report in
April 1990. Weiner states that at that time he and his brother
drew up a plan of action to meet the decline and proposed
a variety of cost cutting measures. While this plan (E. Exh.
2), called for the shifting around of employees to where
needed, it did not by its terms, call for the layoff or dis-
charge of existing employees. Indeed, Weiner’s testimony
was that although the company reduced its total complement
of employees over the next 9 months, this was accomplished
by first discharging marginal employees, (i.e., those whose
work was not good enough), and thereafter eliminating posi-
tions through a process of attrition, wherein employees who
quit or were discharged for cause, were not replaced except
when absolutely necessary.
I am convinced by the Employer’s evidence that there was
a reduction in the Company’s income during 1990. I am also
convinced that the total complement of employees, (including
warehouse employees), was allowed to drop over a period of
time as a cost cutting measure. I am not convinced, however,
that the Respondent laid off Beigert as a cost-saving meas-
ure.
The Respondent asserts that a manager’s meeting was held
on October 25, 1990, regarding measures to be taken to save
money. Weiner states that when Warehouse Manager
Leadbitter returned from vacation, around November 7, 1990,
he informed him of the previous meeting and told him to re-
duce costs. As a consequence of these two meetings, it is as-
serted that the decision to lay Beigert off was made before
the November 9 meeting wherein Weiner addressed employ-
ees about the Union and where Beigert spoke up to rebut the
antiunion statements of another employee.
An examination of the Company’s minutes of the October
25, 1990 meeting (E. Exh. 7) indicates a concern for the
company’s fiscal condition, albeit there is a prediction that
the worst was behind them and that the final quarter may
break even. A variety of suggestions were made to increase
efficiency and productivity and there is one statement regard-
ing employment levels. This states that it is ‘‘OK to taper
off staff level at mgrs’ discretion.’’ There is however, no
order, either direct or implied, to lay off employees and I
view the quoted statement merely as an approval for the
managers to continue to reduce payroll costs by attrition in
accordance with the existing practice.
The fact is that the Company admits that not one em-
ployee other than Beigert was laid off due to the economic
downturn. Moreover, Weiner bragged about this to the em-
ployees as late as November 5, 1990, 4 days before Beigert’s
termination. Thus, on that date, Weiner stated:
We have carried ourselves through this miserable
economy without a single layoff. In fact four of us have
come on board since Sept. Ask Local 456 how many
members of theirs have been laid off. (Emphasis
added.)
In short, while Weiner and Leadbitter asserted that the de-
cision to lay off Beigert was made 1 or 2 days before No-
vember 9, 1990, and that their decision was motivated by
economic considerations, I don’t believe them.
III. ANALYSIS
The Respondent made no secret of its desire to avoid
unionization by this Union. It explicitly asserted soon after
the petition was filed that it would exercise ‘‘all of our legal
rights to keep them out of our joint futures.’’ The question
here is whether the Company went beyond the boundaries of
the law.
While the Respondent denies that it was aware of
Beigert’s union activities, the evidence shows that the Com-
pany was aware of the organizing campaign in September
1990, shortly after it began. The evidence also shows that
Beigert was the employee most active in this campaign.
In my opinion, the General Counsel, pursuant to Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), has made out a
prima facie case that Beigert was laid off because of his
union activities. I note that the layoff occurred close in time
to the filing of the election petition by the Union and imme-
diately after the November 9 meeting, wherein Beigert re-
sponded to antiunion statements made by another employee.
The employer asserts that the General Counsel’s case must
fail because there is no evidence that the respondent had
knowledge of Beigert’s union activities. This contention is
rejected. In Darbar Indian Restaurant, 288 NLRB 545
(1988), the Board stated:
[T]he Respondent contends . . . that the General
Counsel failed to establish that it had knowledge of
Saha’s union activities. Although there is no direct evi-
dence of the Respondent’s knowledge, we believe that
the circumstances here support an inference of knowl-
edge based . . . on the Respondent’s general knowl-
edge of union activity among the small group of seven
dining room employees, the timing of the discharge, the
contemporaneous 8(a)(1) conduct, the shifting and
pretextual reasons asserted for the discharge and the ab-
sence of any incident involving Saha or any conduct by
him to explain his discharge on June 8.
In view of my conclusion that the General Counsel has
made out a strong prima facie showing that Beigert was laid
off for unlawful reasons, the burden is placed on the Re-
spondent to demonstrate that it would have laid Beigert off
notwithstanding his union and protected activities. And in my
opinion, this is something that the Respondent has failed to
do. I therefore conclude that the the layoff of Beigert on No-
vember 9, 1990, violated Section 8(a)(1) and (3) of the Act.
As to the other allegations of the complaint I find as fol-
lows:
1. I find no merit to the allegation that the employer told
employees that it would be futile to select a union and in-
forming them that it would never sign a union contract. This
allegation is based on the testimony of employees Beigert
and Albury who I believe honestly misinterpreted what
Weiner said at the two meetings in November 1990. I con-
clude that Weiner read from speeches approved by his attor-
neys which, although indicating an aversion to the Union,
only stated that the Company would not sign a particular
contract with Local 456. I can understand how these state-
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although Beigert was not sure of the date of this conversation
and placed it towards the end of October, it must have occurred
somewhat earlier as Leadbitter was on vacation from October 20, to
November 5. In any event, I do not find that Beigert’s failure to pin-
point the date of this conversation with greater accuracy, as detract-
ing from his overall credibility.
2 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ments (while holding up a document purporting to be a con-
tract) could easily be understood by the employees as mean-
ing that the Company would never sign any agreement with
Local 456. (Particularly as Weiner left out any mention or
discussion of the negotiation process.) While flirting with the
line of legality (and probably intended to suggest implicitly
more than the explicit text), I do not believe that the state-
ments made in the present case, constitute a violation of Sec-
tion 8(a)(1) under existing case law. Cf. O’Neil Moving &
Storage, 209 NLRB 713, 715 (1974); Airport Express, 239
NLRB 543, 548 (1978); D & H Mfg. Co., 239 NLRB 393,
404 (1978).
2. I credit the testimony of Chris Albury regarding the oc-
casion in September 1990, when Warehouse Manager David
Leadbitter called together employees Albury, Lindsey, Hardy,
and Williams, and told them that if the shop became union-
ized, there would have to be timeclocks, more strict proce-
dures, and that it could result in employees being replaced.
In my opinion, these statements were illegal threats and vio-
lative of Section 8(a)(1).
3. The complaint alleges that the Respondent, by
Leadbitter, unlawfully solicited grievances and this relates to
conversation that took place at the meeting described above
in paragraph 2. In this regard, the testimony of Albury was
that at one point in the meeting, Leadbitter asked if there
were any questions, whereupon Albury stated that he was un-
happy with his last review. According to Albury, his review
was modified thereafter, with a concomitant increase in sal-
ary. As to this same meeting, Leadbitter testified that he
asked the employees what was going on, whether something
was wrong, and whether they wanted to talk about it. He
states that Albury and Lindsey both brought up complaints
regarding their evaluations which he subsequently reviewed.
Whichever, version is correct (and they do not differ much),
I do not believe the evidence here amounts to a solicitation
of grievances. At most, there was a casual inquiry as to what
was troubling the employees and nothing more.
4. Based on the credited testimony of Albury, I find that
there was no unlawful interrogation that occurred at the
above described meeting.
5. Based on the credited testimony of Beigert, I find that
in October 1990,1 he was asked by Leadbitter who was be-
hind the Union and if he had been approached by the Union.
Beigert’s response was that he didn’t know anything about
the Union. In view of my other findings regarding the com-
pany’s violations of Section 8(a)(1) and (3), I conclude that
this interrogation was also unlawful. Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
6. Beigert testified that he was told by Beigert that he
soon would be promoted to a regular driver’s position. How-
ever, this statement took place before the Union filed its
election petition, was not connected to any reference of the
Union, and there is no evidence that it was motivated by
union considerations. Accordingly, I shall dismiss the allega-
tion that the employer promised wage increases to its em-
ployees in order to dissuade them from joining or selecting
the Union.
CONCLUSIONS OF LAW
1. By discharging Brett Beigert because of his union ac-
tivities and sympathies, the Company has violated Section
8(a)(3) and (1) of the Act.
2. By threatening employees with replacement and with
more strict procedures, the Company has violated Section
8(a)(1) of the Act.
3. By interrogating employees regarding the Union, the
Company has violated Section 8(a)(1) of the Act.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Brett
Beigert, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (l987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Best Plumbing Supply, Inc., Yorktown
Heights, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of their activities or support for Local 456,
International Brotherhood of Teamsters, AFL–CIO or any
other labor organization.
(b) Threatening employees with replacement, with more
strict procedures, or with any other reprisals if they join or
select the Union as their bargaining agent.
(c) Coercively interrogating employees about their union
membership or activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act, except to the extent
that those rights may be affected by an agreement requiring
membership in a labor organization, as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Brett Beigert immediate and full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
149BEST PLUMBING SUPPLY
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the Brett Beigert in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Yorktown Heights, New York,
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice, on forms provided by the Regional Director for
Region 2 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
employees because of their activities or support for Local
456, International Brotherhood of Teamsters, AFL–CIO, or
any other labor organization.
WE WILL NOT threaten our employees with replacement,
with more strict procedures or with any other reprisals if they
join or select a union as their collective-bargaining represent-
ative.
WE WILL NOT coercively interrogate our employees about
their union membership or activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act, except to the extent
that those rights may be affected by an agreement requiring
membership in a labor organization, as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act.
WE WILL offer Brett Beigert 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 se-
niority or any other rights or privileges previously enjoyed,
and WE WILL make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
the decision.
WE WILL remove from our files any reference to the un-
lawful discharge and notify the Brett Beigert in writing that
this has been done and that the discharge will not be used
against him in any way.
BEST PLUMBING SUPPLY, INC.