Brenal Electric Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1987

284 N.L.R.B. 552 (N.L.R.B. 1987)

552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brenal Electric, Inc. and Kenneth Newton. Case 29-
CA-12277
26 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 17 March 1987 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board had dele-
gated its authority in this proceeding to a three-
member panel.
The Board had considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 1 and
conclusions, to modify his remedy, 2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Brenal Elec-
tric, Inc., Bethpage, New York, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order, except that the attached notice
is substituted for that of the administrative law
judge.3
The Respondent has excepted to some of the judge's credibility find-
ings. 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.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.
3 The judge inadvertently omitted the expunction paragraph from his
notice We will therefore attach a new notice to conform to his findings.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge, terminate, or refuse to
reemploy our employees due to your activities on
behalf of Local 25, International Brotherhood of
Electrical Workers, AFL-CIO, or any other labor
284 NLRB No. 70
organization, or because you engaged in any other
protected concerted activities or participated in
any proceeding before the National Labor Rela-
tions Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole Kenneth Newton, with in-
terest, for any loss of earnings he may have suf-
fered as a result of our discrimination against him;
and WE WILL offer him full and immediate rein-
statement 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 privi-
leges.
WE WILL notify Kenneth Newton that we have
removed from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
BRENAL ELECTRIC, INC.
Lynn Neugebauer, Esq., for the General Counsel.
Frank Lutz Jr., Pro Se
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLowrrz, Administrative Law Judge. This
case was tried before me on 8 January 1987 in Brooklyn,
New York The complaint, which issued on 14 March
1986, 1 and was based on an unfair labor practice charge
filed by Kenneth Newton on 7 February, alleges solely
that Brenal Electric, Inc. (Respondent), discharged
Newton on 27 January because he joined and assisted
Local 25, International Brotherhood of Electrical Work-
ers, AFL-CIO (the Union), engaged in other protected
concerted activities, and because he was a named discri-
minatee in a prior Board matter in which he received
backpay from Respondent. This discharge is alleged to
violate Section 8(a)(1), (3), and (4) of the Act.
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FAcr
I. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. FACTS AND ANALYSIS
By Decision and Order dated 10 September 1984, 2 the
Board found that Respondent violated Section 8(a)(1)
1 Unless indicated otherwise, all dates referred to are in 1986.
2 271 NLRB 1557
BRENAL ELECTRIC 553
and (3) of the Act by discharging its entire unit of elec-
tricians, including Newton, on 14 June 1983, shortly after
learning of their activities on behalf of the Union, and by
engaging in numerous violations of Section 8(a)(1) of the
Act. This decision was enforced by the United States
Court of Appeals for the Second Circuit on 1 February
1985. On 29 August 1985 the Regional Director for
Region 29 issued a backpay specification and notice of
hearing. On 24 January, the General Counsel, Respond-
ent, and Union entered into a stipulation as to the total
amount of backpay and interest due to the 11 discrimina-
tees pursuant to the Board Order; this stipulation was ap-
proved by an administrative law judge on 30 January.
Newton received $4380, the second largest amount.
In late February 1985, Respondent offered Newton re-
instatement and he returned to Respondent's employ in
March 1985; none of the other discriminatees returned to
Respondent's employ at that time. Although the stipula-
tion referred to above was executed in January, the
backpay hearing was scheduled for trial on 3 December
1985. Newton was subpoened by the Board to attend this
hearing and he so informed his supervisor, Mitch Vi-
zarry. Although he appeared at the hearing, he was told
that there was no need for his testimony because the par-
ties had agreed on the amount of backpay due each dis-
criminatee, subject to the approval of each. Newton tes-
tified that, on returning to work the following day, he
informed Vizarry, in the presence of the other employ-
ees, what had occurred and how much ba.ckpay he
would be receiving. Respondent President Frank Lutz
testified that he was told that Newton bragged about the
settlement to all the employees. On the following day,
Newton was called to Lutz' office. He testified that Lutz
closed the door and told him that he was getting tired of
his big mouth and telling everybody how much money
he was getting. Lutz also told Newton that he was dan-
gerous on the job because of his illness—he suffers from
Petit Mal—a form of epilepsy. Lutz testified that at this
meeting he told Newton that whatever business they had
was between them and was nobody else's business; he
did not tell the foreman and the men, so neither should
Newton. According to Newton's testimony, Lutz also
said that he had previously taken him off the Long
Beach job "because of trouble there." Newton said that
was not the reason; it was because after Newton had a
seizure on the job, Lutz spoke to Newton's doctor, who
recommended that he not work in high exposed places
and Lutz took him off the job and transferred him to the
Stanford Court job in Wantagh. Newton testified that at
the time of this conversation he was working at Stanford
Court, "wiring condos." After this conversation with
Lutz, he was assigned to digging trenches and decorating
Christmas trees with an assistant foreman.
When Newton returned to Respondent's employ in
March 1985, he was assigned to Respondent's Long
I3each job, wiring condos. He stopped working there in
May 1985 after he suffered a seizure on the job. At that
time, Newton's doctor gave Lutz a note that he did not
want Newton working in high exposed places, and
Newton was then assigned to the Stanford Court job.
On 5 December 1985 Newton was called to another
meeting in Lutz' office, attended by Lutz, his son,
Robert, and Vizarry who asked if Newton had a union
card; he said that he did not and Lutz said that a union
card did not mean anything. Vizarry told Lutz that
Newton was constantly talking to the other employees
about the Union while they were working; Newton
denied it.
On 11 December 1985 Lutz told Newton that he
would have to work at the Stanford Court site because
he was short of employees at that location. On that day
Newton suffered two seizures at that location; upon re-
covering later that day, he told Lutz that he was going
to see his doctor the following day and he asked if Lutz
would be in his office the following day to speak to his
doctor. Newton testified that Lutz said that he wanted a
letter from the doctor saying that he would be responsi-
ble if Newton was hurt on the job. Lutz testified that he
did tell Newton that he wanted a letter from his doctor
saying that he was well enough to return to work as an
electrician; he did not ask for a letter from the doctor
saying that he would be responsible if anything happened
to Newton on the job. "No doctor in his right mind
could do anything like that." Newton's last day of em-
ployment with Respondent was 11 December 1985.
The next morning Newton went to see his doctor.
After the examination, he asked the doctor to call Lutz,
which he did; he was told that Lutz was not in.
Newton went to Respondent's office on 27 January.3
Newton testified that he told Lutz that he bad a letter
from his doctor4 and he would like to return to work.
Lutz said that the letter was not good enough, he would
have to speak to his doctor. Newton offered the doctor's
note to Lutt but he would neither read nor accept it, he
wanted to speak to the doctor. Newton told him that the
doctor had tried calling him several times. Lutz said:
"I'm not going to chase your doctor down." Newton
was asked if Lutz said anything about the kind of doc-
tor's note that was required; he testified: "He told me to
tell the doctor to have him write a letter stating that he
would accept all responsibility for me if I was to get
hurt on my job." Lutz testified:
If Mr. Newton brought a letter to me stating that
he had a doctor's letter that stated he could come
back to work or whatever it said, I would have
read it. I mean, I would not have taken a letter and
just said I don't want it. I would have read the
letter and seen what it said.
Lutz never specifically denied that Newton offered him
a doctor's letter at this 27 January meeting he testified:
"If he had a letter at that time that gave him the doctor's
okay to come back to work" and "if Mr. Newton had a
3 There is no explanation for the absence of any activity between 12
December 1985 and 27 January.
4 This letter dated 18 December 1985 states that Newton "has been
advised to be cautious in his employment as an electrician" and "has been
further advised not to work on high altitudes, exposed buildings, scaffold-
ing, etc. However, he is permitted to work within enclosed rooms, build-
ings, steps, etc." Newton testified that sometime prior to 27 January his
doctor informed him that he received a telephone call from some uniden-
tified person at Respondent, telling him that he was having seizures regu-
larly, on a daily basis. Newton denied it.
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
letter that he could go back to work. . ." and "if he had
a letter from his doctor, I would have read it." When
asked on cross-examination whether Newton told him on
27 January that he had the doctor's note, Lutz testified:
"Not that I know of." In an affidavit Lutz gave to the
Board on 14 January, Lutz stated: "He spoke to me yes-
terday and said he had a doctor's note to show me." At
the hearing he testified: "In this statement I remembered
a doctor's note, okay. Right now when you asked me I
said I did not remember a doctor's note."
Lutz testified that because of his insurance coverage,
whenever an employee is hurt or has an accident on the
job, that employee is required to bring him a doctor's
letter saying that he is capable of returning to work.
There are no exceptions to that rule. Lutz also testified
that sometime after he told Newton that he wanted a
letter from his doctor saying that he was capable of re-
turning to work as an electrician he had a message that a
doctor called him. Lutz returned the call. Lutz asked the
doctor if Newton could return to work as an electrician;
the doctor said that Newton was not an electrician, he
worked on the ground cleaning or repairing trains. Lutz
said he was wrong; he operated an electrical concern
and Newton worked as an electrician for him. Newton
testified on rebuttal that he told his doctor that he was
an electrician employed by Respondent, but that he had
taken a test given by the New York City Transit Author-
ity for a car maintainer.
Lutz testified that sometime prior to 1985 he learned
that Newton was having seizures and he attempted to ac-
commodate him by assigning him to jobs that posed little
danger for him. However, he did not always have such
jobs available; prior to Christmas 1985, Newton was as-
signed to dig trenches and put up Christmas lights. How-
ever, after 11 December 1985, the only work he had for
Newton was normal electrician's work—up and down on
a step ladder and bringing wires across the ceiling. He
had no work that did not require working from a height
above the floor.
In Wright Lines, 251 NLRB 1083 (1980), the Board set
forth the rule to apply in discrimination cases such as the
instant matter:
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
The General Counsel has clearly satisfied her burden.
Newton worked from March until December 1985 with-
out major problems. His employment ceased shortly after
Respondent agreed to pay him and the other discrimina-
tees for Respondent's past discrimination against them as
found by the Board, and shortly after Lutz criticized him
for telling his fellow employees of the amount he would
receive from Respondent under the proposed Board set-
tlement. And an examination of the Board decision in the
prior matter leaves little doubt of Respondent's union
animus.
A more difficult question is whether Respondent has
sustained its burden of establishing that the same action
would have been taken even absent Newton's protected
conducted. Newton's condition clearly placed in question
his ability to act, unrestricted, as an electrician. His occa-
sional epileptic seizures created a possible danger when
he worked on ladders or other elevated surfaces. How-
ever, prior to December 1985, he was employed by Re-
spondent for 15 months during which time Respondent,
apparently, had little difficulty finding appropriate work
for Newton to perform. This was especially true of his
last 6 months of employment, during that period Re-
spondent, admittedly, was aware of Newton's illness. In
fact, the record establishes that he had a seizure while on
the Long Beach job in May 1985; at that time, Respond-
ent was able to transfer him to other work and employ
him regularly until the events of early December 1985.
I find that Respondent has not sustained his burden
under Wright Line, supra. Although the record is clear
that Newton's illness somewhat curtailed his occupation
as an electrican, as the General Counsel satisfied her
burden, it is Respondent's burden to establish why it
could not employ Newton in 'appropriate jobs after 11
December 1985 as it had done in the past, and it has not
done so Lutz testified that because work was slow, he
laid off a number of employees in early February, but he
never offered any substantive testimony why he could
not provide work for Newton after 27 January.
Lutz' testimony regarding the requested doctor's letter
was confusing; he admittedly asked Newton to get a
doctor's letter regarding his condition (although there is
a dispute as to what Lutz wanted in this letter, I fmd
that irrelevant to the ultimate determination herein).
Newton, whom I found to be a very credible witness,
testified that on 27 January he offered the doctor's letter,
approving limited work, to Lutz who refused to accept
it. Lutz testified that Newton never gave him a letter
from his doctor, although he testified that he could not
remember the meeting of 27 January; "If he had a letter
from his doctor, I would have read it." However, the af-
fidavit Lutz gave to the Board states that 2 weeks earlier
Newton told him that he had a letter from his doctor.
Additionally, Lutz testified that he spoke to Newton's
doctor and I find that the doctor told Lutz what he
stated in his letter, that Newton was permitted to work
within enclosed rooms or buildings. On the basis of this
evidence, I credit Newton's testimony that he offered
Lutz the doctor's letter on 27 January, but Lutz refused
to accept it, knowing that it approved Newton's return
to work. Having failed to sustain its burden, I fmd that
on 27 January Respondent discharged and refused to
employ Newton because of his Board activity, as well as
his prior union and concerted activity.
CONCLUSIONS OF LAW
1. The Respondent, Brenal Electric, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
BRENAL ELECTRIC

555
3. The Respondent violated Section 8(a)(1), (3), and (4)
of the Act by discharging and refusing to reemploy Ken-
neth Newton on 27 January 1986.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices it will be rec-
ommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act, to wit, that Respondent offer Newton
immediate reinstatement to his former position, or if that
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other rights
and privileges. It is also recommended that Respondent
be ordered to make Newton whole for any loss of earn-
ings he sustained by reason of his discharge. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977); see generally Isis Plumbing Co., 138
NLRB 716 (1962). I find the visitatorial clause requested
by the General Counsel unnecessary herein. 0. L Willis,
Inc., 278 NLRB 203 (1986).
On these findings of tact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The Respondent, Brenal Electric, Inc., Bethpage, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, terminating, or otherwise discriminat-
ing against its employees in retaliation for their activities
on behalf of the Union, or because they were discrimina-
tees or participants in prior Board actions.
5 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.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Newton immediate reinstatement to his
former position of employment or, if that position is no
longer available, to a substantially similar position with-
out prejudice to his seniority or other rights and make
him whole for the loss he suffered as a result of the dis-
crimination in the manner set forth above in the remedy
section.
(b) Remove from its files reference to the termination
of Newton and notify him in writing that this had been
done, and that the evidence of this unlawful activity will
not be used as a basis for future actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Bethpage, New York location copies of
the attached notice marked "Appendix." 6 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
6 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 Nation-
al 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"