Bricklayers Local 9

National Labor Relations Board - Board Decisions

Jan 13, 1995

315 N.L.R.B. 1300 (N.L.R.B. 1995)

1300
315 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge incorrectly referred to the underlying Board proceed-
ing in Case 7–CA–33506 as 7–CA–32343; misspelled the names of
Ursula ‘‘Schrader,’’ Robert E. Van ‘‘Arsdalen,’’ and ‘‘Daryl’’
Hollenback; and misstated that Hollenback was restored to the ‘‘dic-
tatorship’’ instead of ‘‘directorship’’ of the district council. These in-
advertent errors do not affect our decision.
Local 9, International Union of Bricklayers and Al-
lied Craftsmen, AFL–CIO, f/k/a Central Michi-
gan Administrative District Council and Louis
W. Walter. Case 7–CA–35423
January 13, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On July 28, 1994, Administrative Law Judge Lowell
M. Goerlich issued the attached decision. Counsel for
the General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition to
the General Counsel’s exceptions.
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,1 and con-
clusions and to adopt the recommended Order for the
reasons set forth below.
The judge found, and we agree, that the General
Counsel has failed to establish prima facie that the Re-
spondent selected Louis W. Walter Jr. and Larry
Spofford for layoff on July 19, 1993, because of their
purportedly adverse testimony to the Respondent in
Case 7–CA–33506, involving the Respondent’s failure
to retain secretary Ursula Schrader.
The General Counsel has excepted to the judge’s
failure to address and find violations of Section 8(a)(1)
and (4) based on certain additional allegations speci-
fied in its posthearing brief to the judge that it con-
tends are subsumed within the original complaint,
namely, that the Respondent selected Walter and
Spofford for layoff in part because of their commu-
nications with Schrader while her litigation was pend-
ing and their vocal opposition to the Respondent’s pur-
ported attempts to fabricate evidence to bolster its de-
fense in that proceeding.
We find no merit in these exceptions because we
find, from our careful examination of the record, that
there is insufficient evidence to establish prima facie
any violations based on those additional allegations,
even assuming that they are subsumed within the com-
plaint. Accordingly, we adopt the judge’s rec-
ommendation to dismiss the complaint in its entirety.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Joseph P. Canfield, Esq., for the General Counsel.
Christopher P. Legghio, Esq., of Detroit, Michigan, for the
Respondent.
Louis W. Walter, Jr., of South Boardman, Michigan, in
propria persona.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charge in this proceeding filed on January 13, 1994, by Louis
W. Walter Jr., an individual (the Charging Party), was served
by certified mail on Local 9, International Union of Brick-
layers and Allied Craftsmen, AFL–CIO f/k/a Central Michi-
gan Administrative District Council (the Respondent), on
January 13, 1994. A complaint and notice of hearing was
issued on February 14, 1994. The complaint, among other
things, alleges that the Respondent permanently laid off the
Charging Party and Larry Spofford because they testified at
an unfair labor practice hearing before the Board in Case 7–
CA–32343, all in violation of Section 8(a)(1) and (4) of the
National Labor Relations Act (the Act).
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The complaint came on for hearing at Grand Rapids,
Michigan, on May 25 and 26, 1994. Each party was afforded
a full opportunity to be heard, to call, to examine and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file briefs.
All briefs have been carefully considered.
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. JURISDICTION
At all material times, the Respondent has maintained its
principal office and place of business at 241 East Saginaw
Street, Suite 402, East Lansing, Michigan (the East Lansing
facility). The Respondent is, and has been at all times mate-
rial, an unincorporated association engaged in the business of
representing employees in bargaining with employers with
respect to wages, hours, and other terms and conditions of
employment.
At all material times, the Respondent has been chartered
as an integral part of a multistate labor organization, the
International Union of Bricklayers and Allied Craftsmen,
AFL–CIO, which maintains its national headquarters in
Washington, D.C.
During the calendar year ending December 31, 1993,
which period is representative of its operations during all
times material hereto, the Respondent, in the course and con-
duct of its business operations, collected and received dues
and initiation fees in excess of $100,000 and remitted from
its East Lansing, Michigan facility to the Washington, D.C.
facility of the International Union of Bricklayers and Allied
1301BRICKLAYERS LOCAL 9
1 Local 9 has been in place since October 9, 1993.
2 I have reviewed the entire record as a whole and have not
pretermitted any evidence. My findings have been based only on the
material evidence.
3 The General Counsel writes in his brief, ‘‘While the testimony
of Spofford was not adverse to Respondent’s position on its face,
neither did it assist Respondent’s case.’’
4 In his brief, ‘‘the selection of Walter, Spofford and Van
Arsdaalen for layoff is highly suspicious.’’ Although this may be,
the evidence to be dispositive must be more than a suspicion.
Craftsmen, AFL–CIO, dues, initiation fees, and per capita
taxes in excess of $50,000.
At all material times, Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNFAIR LABOR PRACTICES INVOLVED
The parties stipulated that the Respondent was a successor
to Central Michigan Administrative District Council (the Dis-
trict Council).1 The Charging Party, Larry Spofford, and
Robert E. Van Arsdaalen, among others, were employed by
the District Council as field representatives and were mem-
bers of its executive committee. Darryl E. Hollenback, direc-
tor of the District Council, laid off the Charging Party,
Spofford, and Arsdaalen on July 19, 1993, because of finan-
cial difficulties. These three persons gave testimony under
subpoena in the case of International Union of Bricklayers
and Allied Craftsman and its Central Michigan Administra-
tive District Council and Ursula Schrader, an individual,
Case 7–CA–33506. The case was tried between January 11
and May 13, 1993. The General Counsel claims that the
three above-named persons were laid off because of the testi-
mony which each gave in the above-mentioned case.
The General Counsel offered the testimony given by Wal-
ter and Van Arsdaalen in Case 7–CA–33506. Spofford’s tes-
timony was not offered. In this proceeding, Spofford testified
that Hollenback and Christopher P. Legghio, the Union’s at-
torney, had told him that he had done a ‘‘good job’’ in pre-
senting testimony in Case 7–CA–33506.
Walter testified that in April 1993, Walter, Spofford, and
Van Arsdaalen, along with others of the executive commit-
tee, filed internal union charges against Hollenback who had
been appointed director of the District Council. Hollenback
was summarily removed from office. Walter was ‘‘appointed
interim’’ director.
Thereafter, Hollenback was restored to the dictatorship and
charges against him were dismissed.
In the judge’s decision in Case 7–CA–33506 it is stated:
The Complaint alleges that the Respondents violated
Section 8(a)(1) and (3) by . . . the discriminatory fail-
ure of Respondent Central Michigan Administrative
District Council acting through its agent, Darryl
Hollenback, to offer the Charging Party a job at District
Council for the continued preference for Teamsters
Local 580 rather than Teamsters Local 164, thereby dis-
couraging membership in a labor organization.
In the judge’s decision it is also revealed:
This case turns on the credibility, or lack of it, of three
people, Ursula Schinder, the Charging Party; Darryl
Hollenback, the Director of the District Council; and
Thomas McClanahan, the International Union’s Director
of Regionalization Projects. There were a number of
other witnesses called in this case, whose testimony I
find credible, but not dispositive of any of the issues
in this case.
Walter testified on both January 29 and March 8, 1993.
Spofford testified on January 28, 1993. Walter was laid off
around 4 months later. Spofford was laid off around 7
months later.
The work assignments of Walter and Spofford were not
discriminatorily changed by Hollenback after they testified.
Neither individual was threatened before or after their testi-
mony with reprisals nor were they obstructed from testify-
ing.2
CONCLUSIONS AND REASONS THEREFOR
The Respondent asserts that the complaint should be dis-
missed because the General Counsel has not established a
prima facie case. I agree.
Section 8(a)(4) provides: ‘‘It shall be an unfair labor prac-
tice for an employer . . . (4) to discharge on otherwise dis-
criminate against an employee because he has filed charges
or given testimony under this Act.’’
The General Counsel avers that Walter and Spofford were
laid off because they gave testimony in Case 7–CA–33506
adverse to the Respondent.
On this subject, the testimony of Spofford was not offered.
Adverse testimony of Walter is thus described in the General
Counsel’s brief. ‘‘Walter testified that he never attended a
meeting when the hiring of secretaries was discussed.’’ Ap-
parently, the General Counsel considered this testimony to be
adverse to the Respondent because the Respondent ‘‘failed to
establish that the two secretaries had been hired, or even
considered, by the Executive Committee.’’
The judge held:
Since he [Hollenback] was acting on behalf of the Dis-
trict Council in not offering her a job, and he was moti-
vated by union animus in not making the job offer, the
District Council as his employer, is responsible for his
actions and violated Section 8(a)(1) and (3) of the Act
by unlawfully discriminating against Ms. Schroder be-
cause she engaged in protected activity.
In view of this finding of the judge it does not appear that
Walter’s testimony contributed to this finding or had an ad-
verse impact on the Respondent’s position. Moreover, the
judge viewed the testimony of Walter and others as not ‘‘dis-
positive’’ of any issue.
As to Spofford, the General Counsel concedes that his tes-
timony was not adverse on its face.3
I have carefully reviewed the testimony of the Charging
Party and Arsdaalen given in the Case 7–CA–33506, the de-
cision of the judge in the case, and the entire record in the
instant case and I find no credible evidence which will sup-
port a finding that the testimony of Walter, Spofford, and
Van Arsdaalen was adverse to the position of the Respond-
ent4 or that they were selected for layoff because they en-
gaged in activity protected by Section 8(a)(4) of the Act.
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Wright Line, 251 NLRB 1083 (1980).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
I find, having weighed all the material evidence most fa-
vorable for the General Counsel, that the General Counsel
has not established a prima facie case5 because the testimony
in Case 7–CA–33506 cannot be reasonably construed to have
been adverse to the position of the Respondent; the time lag
between the time of the testimony and the action taken was
such as to rebut a claim of discrimination; the failure of the
Respondent to take any claimed reprisals against the testifiers
for an extended period of time after their testimony rebuts
the claim of discrimination.
Further, the Respondent made no threats of reprisal against
the testifiers either before or after they testified, nor did it
obstruct in any manner their testifying; no credible discrimi-
natory motive was proved; Spofford was complimented for
his testimony; and there is no credible evidence that the Re-
spondent was dissatisfied with the testimony given by the al-
leged discriminatees in Case 7–CA–33506.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint is dismissed in its entirety.