Carroll & Carroll

National Labor Relations Board - Administrative Judge Opinions

Jul 15, 2003

10-CA-034076 (N.L.R.B. Jul. 15, 2003)

JD(ATL)—47—03
Savannah, GA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

CARROLL & CARROLL, INC.

and CASE 10-CA-34076

INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO
LOCAL 474

Lauren Rich, Esq., for General Counsel.
Timothy G. Swinson, President,
for Respondent.
Ted Lawrence, Organizer, for Charging Party.

Decision

A hearing was held in Savannah, Georgia on May 21, 2003. I have considered the
full record1 as well as briefs filed by General Counsel and Respondent.

Jurisdiction:

Respondent admitted that it is a Georgia corporation with an office and place of
business in Savannah, Georgia. At material times it has engaged in the business of
paving, grading and milling work as a contractor in the commercial construction industry.
During the past 12 months in the conduct of those business operations Respondent
operated more than one jobsite at the Georgia Ports Authority located in Savannah.
Respondent admitted that it purchased and received at its Savannah jobsites goods,
products and materials valued in excess of $50,000 during the past 12 months from other
enterprises located in Georgia and that each of those enterprises received those goods
directly from points outside Georgia. Respondent admitted that it provided services
valued in excess of $50,000 in its Georgia business operations during the past 12 months
for enterprises located in Georgia and that those enterprises annually ship goods valued in

1 I hereby receive in evidence a motion from General Counsel in the form of a June 13, 2003
letter from Lauren Rich. In that motion Counsel for General Counsel asserted that Respondent
requested the replacement of GC Exh. 15, 16, 17 and 20. I grant that motion and receive “GC Exh.
15, Replaced,” “GC Exh. 16, Replaced,” “GC Exh. 17, Replaced” and “GC Exh. 20, Replaced.” It
is apparent that the original GC Exh. 15, 16, 17 and 20 should now be rejected. Therefore, I
hereby direct that the original GC Exh. 15, 16, 17 and 20 are rejected.

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excess of $50,000 directly to points outside Georgia. In view of those admissions and the
full record, I find that Respondent is and has been an employer at all time material within
the meaning of Section 2(2), (6) and (7) of the National Labor Relations Act (Act).

Labor Organization:

Union organizer Ted Lawrence testified regarding the status of the charging party.
His testimony was not rebutted and it proved that the Charging Party was a labor
organization at material times.

The Record Evidence in Support of the Complaint:

It is alleged that Respondent engaged in unfair labor practices by threatening its
employees with discharge and plant closure, because of their union activities; by
interrogating its employees about the union; and by discharging Waldo Floyd because of
his union activities.

BEFORE SEPTEMBER

Alleged discriminate Waldo Floyd was hired on July 10, 2002. He told
Respondent he was a retired union operator.

SEPTEMBER

A number of employees signed Union authorization cards between September 10
and 20, 2002. Nicholas Evans signed a Union authorization card on September 10 (GC
Exh. 5). Waldo Floyd gave him the card. He signed it and returned it to Floyd. William
Jonas signed a Union authorization card (GC Exh. 3) on September 13. Waldo Floyd
gave Jonas the authorization card. Jonas signed the card and returned it to Floyd. Jason
Barnwell also signed a Union authorization card on September 13 (GC Exh. 4). Barnwell
was given the card by Waldo Floyd. He returned it to Floyd after signing the card. Waldo
Floyd signed a union card on September 20 (GC Exh. 6). Floyd testified that he
successfully solicited 11 employees to sign cards. He also talked to other employees
about the Union. There were a total of 13 operators at that time. Floyd gave all the signed
union cards to the Union.

OCTOBER

On an occasion when William Jonas was riding with his supervisor, Steve Motes,
Motes told him “if Waldo Floyd didn’t stop his union talk, he’d be hunting a job.” That
conversation occurred about 3 or 4 weeks after Jonas signed his card on September 13.

Jason Barnwell also talked with Motes about the Union. Around early October
Motes told Barnwell that he had better leave the Union alone if he wanted his job. Motes
said that Carroll & Carroll would never go union and they would close their doors first.

2

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Respondent management officials Kenneth Pate and Timothy Swinson talked to
several employees2 including William Jonas, Nicholas Evans and Jason Barnwell after
Respondent received a demand letter from the Union. Those conversations occurred on
October 28, 2002. Pate and Swinson3 asked Jonas if he had heard anything about the
Union and if Jonas had signed a Union card.4 They told him it would not be beneficial for
him to join the Union. Jonas recalled that conversation occurred on the same day he
found out Waldo Floyd had been discharged.

Pate and Swinson asked Jason Barnwell if he knew what he was doing to the
Company after Barnwell replied that he had signed a Union card. Pate told Barnwell that
Carroll & Carroll would shut its doors before it will let that happen. Barnwell asked if
they were planning on firing anyone for signing the Union card. Pate replied that he could
not answer that question at that point. Swinson asked if Barnwell knew what the Union
did with their money and he told Barnwell that the Union bought whores.

Jonas testified that Steve Motes came to him shortly after the above conversation
with Pate and Swinson. Motes asked several employees if anyone had signed a union
card and a couple of the employees replied they had. Motes said that anyone that had
signed a union card would be terminated. Additionally, when returning from lunch,
Motes told Jonas that Waldo Floyd was “never one of us.” Nicholas Evans testified that
Motes talked with him on the same day but after he was asked by Pate and Swinson if he
had signed a Union authorization card. Motes asked Evans if he had signed a card. When
Evans replied that he had Motes said, “Ken was probably going to probably get you fired.

Waldo Floyd was fired on October 28.5 That was the same day Respondent
president Timothy Swinson and vice president Kenneth Pate asked several employees
whether the employees had signed Union cards. Joseph Vail handed Floyd a envelop at
quitting time and told Floyd they did not need him anymore. Floyd asked if he was laid
off and Vail said he was for lack of work (GC Exh. 9).6 Floyd testified that he did not
read his separation document upon receipt from Vail but he testified that he never
received written warnings for poor attitude or for improper operation of any equipment.7

2 Pate and Swinson did not limit their questioning to employees that worked with Waldo Floyd.
Instead according to Pate, they questioned approximately 52 employees on Respondent’s jobs.
3 Jonas testified that he believed Pate was the one that spoke but that it was either Pate or Swinson.
4 The transcript incorrectly reflected that Jonas asked himself if he had signed a union card. The
transcript is hereby corrected to properly reflect that Pate and Swinson asked Jonas if he signed a
union card.
5 Union organizer Lawrence testified that he submitted a demand letter to Respondent. Respondent
received that demand letter through certified mail on October 28, 2002.
6 Nicholas Evans talked with Steve Motes after Floyd was terminated. Motes asked what Waldo
Floyd was doing still out in the parking lot. Evans replied they had probably laid Floyd off and
Motes said that Floyd was never one of us.
7 Floyd recalled talking to Steve Motes after he broke a pipe. Motes looked at the pipe and said that
it was dead and not to worry about it. He broke another pipe in front of Joseph Vail and Timothy
Swinson. They just smiled at him and told him to get back to digging. Jason Barnwell and Jonas
testified about several occasions of employees breaking pipes. Barnwell broke a pipe. Nicholas
Evans recalled that his brother Jason Evans had broken a pipeline. None of those employees were
disciplined for their pipe breakage.
3

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Floyd recalled that before his layoff, he asked Pate about whether he had finished
his probationary period and Pate replied that he had and that he had a job, that he was not
going anywhere, they had plenty work and were bidding on work. That conversation
occurred on Tuesday the week before he was laid off. Joseph Vail asked Floyd what Pate
had said about his probationary period. Floyd told Vail and then said the he did not see it,
it looked to him like that job was coming to an end. Vail said the he knew where Floyd
was going from there and that he was going to Mr. Carroll’s pit in order to clean up the
pit.

Both Jonas and Barnwell overheard Waldo Floyd ask Kenneth Pate if he had
passed his probationary period. Jonas recalled hearing Pate reply that Floyd “didn’t have
anything to worry about, he had a job.” Barnwell overheard Pate tell Floyd that he was
planning on sending Floyd to the dirt pit.

Floyd returned to the job following his discharge and Respondent had Floyd
escorted off the job. As Floyd was being escorted off the job, Jason Barnwell told Steve
Motes that he thought they were pretty dirty for what they had done to Waldo. Motes said
they did not need that kind around there.

NOVEMBER

After Floyd was discharged Steve Motes mentioned hiring Waldo Floyd back
because they were short of help. Jonas asked Motes if they would really hire Floyd back
and Motes answered no.

DECEMBER

Some time before Christmas Steve Motes also told Jonas that Mr. Carroll would
shut the doors before he ever went union.

The Alleged Unfair Labor Practices:
Section 8(a)(1) allegations:
(1) Threat of discharge:

Steve Motes told William Jonas “if Waldo Floyd didn’t stop his union talk, he’d
be hunting a job.” That conversation occurred in early October 2002. Also around early
October Motes told Jason Barnwell that he had better leave the Union alone if he wanted
his job.

After William Jonas was questioned by Kenneth Pate and Timothy Swinson on
October 28 Steve Motes asked several employees including Jonas, if anyone had signed a
union card and a couple of the employees replied they had. Motes said that anyone that
had signed a union card would be terminated. On October 29 Motes asked Nicholas

Floyd testified that Steve Motes and Joseph Vail complemented his work. Motes told Floyd that
he had a good eye for grade.
4

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Evans if he had signed a card. When Evans replied that he had Motes said, “Ken was
probably going to probably get you fired.

Motes denied that he threatened employees because of the Union.

(2) Threat of Plant Closure:

As shown above, around early October Steve Motes told Jason Barnwell that he
had better leave the Union alone if he wanted his job. Motes said that Carroll & Carroll
would never go union and they would close their doors first.

Before Christmas 2002 Motes told William Jonas that Mr. Carroll would shut the
doors before he ever went union.

Steve Motes denied that he threatened employees with plant closure it they
selected the union. Motes testified that the only statements he made to employees about
the Union was to the effect that he would not join the union because his father was in the
union and he has no benefits at all from the Union.

As shown herein, Kenneth Pate and Timothy Swinson told Jason Barnwell that
Carroll & Carroll would shut its doors before it let the Union in.

(3) Interrogation:

Kenneth Pate and Timothy Swinson talked to approximately 52 employees about
the Union on October 28, 2002. Pate and Swinson8 asked William Jonas if he had heard
anything about the Union and if Jonas had signed a Union card9 and they told him it
would not be beneficial for him to join the Union. Pate and Swinson asked Jason
Barnwell if he knew what he was doing to the Company after Barnwell replied that he
had signed a Union card. Pate told Barnwell that Carroll & Carroll would shut its doors
before it will let that happen. Barnwell asked it they were planning on firing anyone for
signing the Union card. Pate replied that he could not answer that question at that point.
Swinson asked if Barnwell knew what the Union did with their money and he told
Barnwell that the Union bought whores.

As shown Steve Motes questioned several employees as to whether they had
signed Union cards. A couple of the employees replied they had. Motes questioned those
employees after Pates and Swinson’s interrogation of employees on October 28. Motes
said that anyone that had signed a union card would be terminated. Nicholas Evans
testified that Motes asked Evans if he had signed a card. When Evans replied that he had
Motes said, “Ken was probably going to probably get you fired.

8 Jonas testified that he believed Pate was the one that spoke but that it was either Pate or Swinson.
9 The transcript incorrectly reflected that Jonas asked himself if he had signed a union card. The
transcript is hereby corrected to properly reflect that Pate and Swinson asked Jonas if he signed a
union card.
5

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Findings:
Credibility:

As shown above there are several conflicts in testimony and the full record. In
determining credibility I have considered the full record and the demeanor of the
witnesses.

Respondent argued this is simply a matter on one party saying one thing and the
other party another thing. However, that was not the case. As to several of the alleged
unlawful comments there was no dispute in testimony. As to others it was apparent that
several witnesses recalled similar statements by one particular supervisor.

I do not credit the testimony of Steve Motes or Kenneth Pate to the extent their
testimony conflicted with other testimony. Several employees including William Jonas,
Jason Barnwell and Nicholas Evans testified in direct conflict with the testimony of Steve
Motes. Jonas, Barnwell and Evans had similar recollections of things said by Motes.
However, their testimony was not so similar as to create suspicion. Motes, on the other
hand, denied all their testimony as to conversations those employees had with him. The
testimony of Jonas, Barnwell and Evans showed that Motes questioned employees about
the Union and he threatened discharges and plant closure because of the Union. I credit
that testimony.

Kenneth Pate was unable to recall if he asked any employees if those employees
had signed Union cards but Pate admitted that he questioned employees to determine if
the Union had a majority. Pate’s testimony conflicted with that of several other
employees including Waldo Floyd, William Jonas and Jason Barnwell. I credit Floyd,
Jonas and Barnwell.

Conclusions:

Section 8(a)(1) of the Act specifies it is an unfair labor practice for an employer to
restrain or coerce employees in the exercise of protected rights. The Board and Courts
have long held that threats including especially threats of discharge and plant closure
constitute actions that are protected by Section 8(a)(1). The credited testimony of
William Jonas shows that Steve Motes threatened to discharge employee Waldo Floyd
when he told Jonas that Floyd would be hunting a job if he did not stop his union talk.
The testimony of Jason Barnwell proved that Motes threatened him with discharge if he
did not leave the Union alone. On October 28 Motes threatened several employees that
anyone that signed a Union card would be terminated. On October 29 Motes threatened
Nicholas Evans that he would get fired because he had signed a Union card.

The credited testimony of Jason Barnwell and William Jonas proved that Pate,
Swinson and Motes threatened employees that the plant would be closed before the
Union was allowed in.

6

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Those comments clearly constitute restraint and coercion within the scope of
Section 8(a)(1) and are unfair labor practices.

The testimony of William Jonas, Nichols Evans, Jason Barnwell and Kenneth
Pate proved that Pate and Swinson questioned employees on October 28. Jonas, Barnwell
and Evans credibly testified that those questions concerned whether those employees had
signed Union authorization cards and whether they had heard anything about the Union.
Pate and Swinson told employees that it would not be beneficial for employees to join the
Union. Pate and Swinson questioned employees as to whether they knew what they were
doing to the Company by signing a Union card, and they threatened employees that
Carroll & Carroll would shut its doors before it let the employees select the Union. They
stated to employees they did not know whether they were planning to fire any employee
for signing a Union card and Swinson told employees that the Union used its money to
buy whores.

In regard to whether interrogation constitutes an unfair labor practice, the Board
recently considered that question in Westwood Health Care Center, 330 NLRB 935, 939,
940 (2000):

We agree with our dissenting colleague that the applicable test for
determining whether the questioning of an employee constitutes an
unlawful interrogation is the totality-of-the-circumstances test adopted by
the Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom.
Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985),
and adhered to by the Board for the past 15 years. [FN16] We also agree
that in analyzing alleged interrogations under the Rossmore House test, it
is appropriate to consider what have come to be known as "the Bourne
factors," so named because they were first set out in Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964). Those factors are:
(1) The background, i.e. is there a history of employer hostility and
discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear
to be seeking information on which to base taking action against
individual employees?
(3) The identity of the questioner, i.e. how high was he in the company
hierarchy?
(4) Place and method of interrogation, e.g. was employee called from
work to the boss's office? Was there an atmosphere of unnatural
formality?
(5)Truthfulness of the reply.
Unlike our colleague, however, we note that these and other relevant
factors "are not to be mechanically applied in each case." 269 NLRB at
1178 fn. 20. As the D.C. Circuit Court of Appeals has similarly noted,
determining whether employee questioning violates the Act does not
require "strict evaluation of each factor; instead, '[t]he flexibility and
deliberately broad focus of this test make clear that the Bourne criteria
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are not prerequisites to a finding of coercive questioning, but rather useful
indicia that serve as a starting point for assessing the 'totality of the
circumstances."' Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C.
Cir. 1998), *940 quoting Timsco, Inc. v. NLRB, 819 F.2d 1173, 1178
(D.C. Cir. 1987). In the final analysis, our task is to determine whether
under all the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he or she would
feel restrained from exercising rights protected by Section 7 of the Act.

Here, not all the Bourne criteria are applicable. For example, this was the first
occasion for a Union to seek to represent Respondent’s employees and there was no prior
history regarding antiunion campaigns. Nevertheless, there was a history of employer
hostility expressed through the comments found above to be unlawful.

As to the nature of the information sought, the evidence showed that Pate and
Swinson went beyond inquiry of whether the Union represented a majority of “all heavy
equipment operators and mechanics,” as requested in the Union’s demand for recognition
(GC Exh. 10). As shown above Pate and Swinson interviewed all Respondent’s
employees without regard to their classification. Moreover, their questions to those
employees that testified included whether the employee had signed a Union card and
whether the employees had heard anything about the Union. They told the employees it
would not be beneficial for them to join the Union. Pate and Swinson questioned the
employees as to whether they knew what they were doing to the Company by signing a
Union card and they threatened to shut the doors before the employees would be allowed
to select the Union. When questioned as to whether they would discharge employees
because of the Union they replied they did not know.

As to the identity of the questioners, all three were supervisors. Moreover,
Timothy Swinson is Respondent’s president and Kenneth Pate is its vice-president. As to
place, evidently the questioning occurred on the job and the record is not complete as to
the truthfulness of the employees’ replies.

Additionally, in consideration of the totality of the circumstances, the questioning
took place in an atmosphere of threats of discharge and plant closure.

Respondent argued that Swinson and Pate acted out of ignorance and that their
main focus was to disprove that the Union represented a majority. I find that argument is
not convincing. In the first place Swinson and Pate did not limit their inquiries to whether
the Union represented its operators and mechanics. As shown above there were 13
employees in the unit sought by the Union. However, Swinson and Pate questioned
approximately 52 employees on its several jobs.

Secondly, Swinson and Pate did not limit their questions to those relevant to
whether the employees were represented by the Union. As shown above, their questions
were far more invasive. I am convinced that the questioning by Pate and Swinson
constitutes unlawful interrogation.
8

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Section 8(a)(3) allegation:
The Discharge of Waldo Floyd:

Waldo Floyd was fired on October 28.10 That was the same day Respondent
received a demand for recognition from the Union, and the same day that Kenneth Pate
and Timothy Swinson unlawfully interrogated 52 of Respondent’s employees about the
Union.

As shown above, about 3 or 4 weeks after he signed a card on September 13,
William Jonas talked with his supervisor, Steve Motes. Motes told Jonas that Floyd
would be hunting a job if he didn’t stop his Union talk.

Floyd was hired on July 10, 2002. During his interview he told Joseph Vail and
Steve Motes that he was a retired union operator from Ft. Washington, Pennsylvania.
Vail watched Floyd operate machinery before hiring him. Among other things Vail
commented that Floyd was slow on the motor grader. Nevertheless, Floyd was hired.
While he worked there Steve Motes and Joseph Vail complemented Floyd’s work. Motes
told Floyd that he had a good eye for grade and Vail said that Floyd was his most
dependable operator.

Waldo Floyd, William Jonas and Jason Barnwell all testified about Floyd talking
with Kenneth Pate during the week before Floyd’s termination. Floyd asked Pate if he
had passed his probationary period. Jonas recalled hearing Pate reply that Floyd “didn’t
have anything to worry about, he had a job.” Barnwell overheard Pate tell Floyd that he
was planning on sending Floyd to the dirt pit. Floyd recalled that Pate replied that Floyd
had passed his probationary period; that he had a job; that he was not going anywhere,
they had plenty work and were bidding on work.

Joseph Vail asked Floyd what Pate had said about his probationary period. Floyd
told Vail what Pate had said but Floyd then said the he did not see it, it looked to him like
that job was coming to an end. Vail said the he knew where Floyd was going from there
and that he was going to Mr. Carroll’s pit and clean up the pit.

Waldo Floyd signed a Union authorization card and he solicited other employees
to sign authorization cards, during September 2002. He testified that he successfully
solicited 11 employees to sign cards. There were a total of 13 operators at that time.
Floyd gave all the signed union cards to the Union. Floyd talked to other employees
about the Union.

Respondent received a demand for recognition letter from the Union at 2:16 pm
on October 28, 2002. Immediately upon receipt of that letter President Swinson and Vice

10 Union organizer Lawrence testified that he submitted a demand letter to Respondent. Respondent
received that demand letter through certified mail on October 28, 2002 (GC Exh. 10, 11).
9

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President Pate interrogated 52 employees about the Union. At about 5:00 p.m. that same
day, Respondent terminated Waldo Floyd.

Findings:
Credibility:

Some of the evidence regarding Floyd’s discharge was not disputed. For example
Floyd, Jonas and Barnwell testified to the effect that Floyd had passed his probationary
period and that would continue to work for Respondent. Pate testified but he did not deny
that testimony. Moreover, Project Manager Vail did not deny that after hearing of the
conversation between Pate and Floyd, he told Floyd that Floyd was going to work in Mr.
Carroll’s pit. Moreover, testimony that Respondent complemented Floyd’s work was not
disputed. That testimony showed that Steve Motes told Floyd he had a good eye for
grade. Joseph Vail told Floyd that he was the only dependable operator they had on that
job and that he was always there.

There were serious problems regarding credibility especially in regard to
Respondent’s selection of Floyd for layoff. The record shows that Floyd was told he was
being laid off due to lack of work the week following conversations with both Pate and
Vail to the effect that Floyd would not be laid off. At the time of his layoff Floyd was
given a separation notice. That notice was in an envelope and was not read by Floyd until
after he left the job. The notice stated that Floyd was laid off for lack of work and that he
had been selected as the first employee laid off because, “employee was the first in the
cuts due to attitude and careless operation of equipment around structures.”

However, in its post hearing argument Respondent expanded on the reasons it
allegedly selected Floyd. In its brief Respondent argued that Floyd was selected because
of (1) poor workmanship; (2) bad attitude toward Carroll & Carroll; (3) disrespect for
management personnel; and (4) tenure time with the grading crew.

The testimony by Respondent’s witnesses regarding the decision to layoff Waldo
Floyd, was confused. Project Manager Joseph Vail testified that Chris Davis, President
Timothy Swinson, Vice President Kenneth Pate, Asphalt Plant Manager Vincent and Vail
were usually involved in discussing downsizing. Those discussions occurred in meetings
every Thursday at 2:00 o’clock beginning in August 2002.11 Steve Motes was not present
during those meetings. Vail12 testified that “we” discussed in those management meetings
“who was going to be the next person that we needed to down-size.”13

11 It is important to recall that Vail talked to Waldo Floyd on the Tuesday before the week in which
Floyd was laid off. Vail told Floyd that he would not be laid off but would be sent to Mr. Carroll’s
dirt pit.
12 Vail testified that Waldo Floyd was dependable and was not a careless operator.
13 Vail was asked on a number of occasions to identify the persons in the management meetings that
stated Waldo Floyd was being selected for layoff because he had made some negative comments
about the company. Vail evaded those questions and never gave an answer.
10

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Vice-President Kenneth Pate testified that he recalled discussions of a need for a
layoff but not the selection of a specific employee for layoff. He testified that he recalled
some discussion of Floyd carelessly operating equipment and discussions about Floyd’s
attitude. However, according to Pate, the actual selection of an employee for layoff was
not made in meetings he attended. Instead he testified that decision was by the field
operation. He identified the people that made the actual decision to layoff Waldo Floyd
as Vail and Motes.

Steve Motes was asked who made the decision to let specific people go. Motes
testified in direct opposition to the testimony of Kenneth Pate. Instead of testifying that
decision was made by field operations, Mote testified that management made the decision
as to which specific employees would be laid off.

In view of the above, I find the testimony of Pate, Vail and Motes is in conflict as
to the actual decision to layoff Waldo Floyd. I find there was no credible evidence
showing the actual decision making which resulted in Floyd’s layoff. None of
Respondent’s witnesses testified to being present when the decision was made to
terminate Waldo Floyd and none of those witnesses admitted to first hand knowledge of
which official or officials actually made the decision to terminate Floyd.

In view of the full record and the demeanor of the witnesses I credit the testimony
of Floyd, Jonas and Barnwell and do not credit the testimony of Pate, Vail and Motes.

Conclusions:

The record showed that Waldo Floyd was visibly engaged in Union organizing
activities among Respondent’s employees at the Savannah docks job from September
2002 until his discharge. He talked to Respondent’s employees about the Union and
Floyd successfully solicited 11 of 13 employees to sign Union authorization cards.

The record also showed that Respondent was aware of Floyd’s Union organizing
activities, Respondent harbored Union animus and Respondent considered discharging
Floyd because of his organizing activities. As shown above even though Waldo Floyd
told Respondent that he was a retired Union member when he was hired on July 10, 2002,
it was not until September that he started organizing for the Union. In early October
supervisor Steve Motes told employee William Jonas that Floyd would be looking for a
job if he did not stop his Union talk. After Floyd’s discharge, Steve Motes told William
Jonas that Floyd was “never one of us.”

Respondent demonstrated Union animus by its actions including the section
8(a)(1) comments found herein.

The element of timing is also significant in questioning whether General Counsel
proved that Respondent was motivated by Union animus in terminating Floyd. Floyd was
terminated on the same day that Respondent received the Union’s demand for
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recognition. Respondent received the Union’s demand for recognition (GC Exh. 10) at
2:16 pm on October 28, 2002.

Immediately thereafter Respondent interrogated 52 employees about the Union
organizing activity and, at approximately 5:00 p.m. that same day, Respondent
terminated Waldo Floyd.

In view of the record evidence I find that General Counsel proved that
Respondent was motivated by Union animus to terminate Waldo Floyd. I shall now
consider whether Respondent would have terminated Floyd on October 28 in the absence
of his Union activities.

In that regard I shall examine the evidence in regard to Respondent’s asserted
reasons for terminating Waldo Floyd. Those reasons are set out in Floyd’s separation
notice (GC Exh. 9) as (1) curring (cutting) work force as project comes to end; and (2)
this employee was the first in cuts due to attitude and careless operation of equipment
around structures.14

Respondent offered evidence showing that Project 1 was completed in December
2002. It argued that, in accord with routine practice common in this industry, it started a
layoff in anticipation of the completion of that job. Floyd’s separation notice included a
comment to the effect that Respondent started its reduction in force with the layoff of
Waldo Floyd. However, as shown herein, during the week before his layoff, both
Kenneth Pate and Joseph Vail told Floyd that he would not be laid off. Instead, Floyd was
told that he would be transferred to Mr. Carroll’s dirt pit.

After Floyd’s layoff and before anyone else was laid off, the Union filed an unfair
labor practice charge on November 4 alleging that Floyd was unlawfully laid off. That
charge was served on Respondent on November 5. From that point forward Respondent
was aware that the Union was alleging that Respondent treated Floyd in a disparate,
unlawful manner and that it may have to show that charge was untrue. It was with that
knowledge that Respondent laid off two other employees before the end of the year.

14 Even though Floyd’s separation notice showed the alleged reasons for his selection, Respondent
subsequently offered additional reasons for the layoff. Respondent argued that Floyd was actually
terminated because he was the best candidate for lay off due to lack of work and because of his:
(1) Poor Workmanship; (2) Bad Attitude towards Carroll & Carroll, Inc.; (3) Disrespect for
management personnel; and (4) Tenure time with the grading crew. The Board has found that
changes in reasons for an employer’s actions, tends to illustrate pretext. Moreover, as to poor
workmanship, Floyd never received disciplinary action and Respondent knew that he was slow on
the motor grader from before the time of his hiring. As to attitude, Floyd was never disciplined
and he was complemented as being the most dependable employee. As to disrespect there was no
showing of complaints by Respondent and there was no disciplinary action taken against Floyd.
As to tenure, Respondent’s records show that William Jonas was actually hired by Respondent
after it hired Floyd. Jonas worked with Respondent but while employed by a temporary agency
since June 19, 2002 but Respondent did not hire Jonas until September 19, 2002. Floyd was hired
on July 10, 2002. Additionally, Respondent actually hired one employee as a laborer/operator in
milling at the Phase 1 job after Floyd was terminated. Tracy Mydell was hired on November 19,
2002.
12

JD(ATL)—47—03

With those matters and the full record, in mind, I have examined the background
of Respondent’s alleged motivation to layoff Floyd on October 28:

Cutting work force as project comes to end:

As shown above the primary reason given for a layoff of any type on Floyd’s
separation notice was cutting “work force as project comes to end.” However, there was
little evidence that Respondent actually cut its work force before October 28. In that
regard there was testimony as shown above, that discussions occurred regarding a
reduction in force beginning in August or September 2002.

With the exception of Assistant Project Manager Randy Myers,15 there was no
evidence that Respondent actually started a layoff from the Project 1 job before October
28. As shown above, Respondent stated on Waldo Floyd’s separation notice that he was
the first layoff.

The evidence regarding the August to October management discussions and the
conversations between Waldo Floyd and Kenneth Pate and then between Waldo Floyd
and Joseph Vail the week before Floyd’s termination, present significant issues.

Project Manager Joseph Vail testified that Respondent held weekly management
meetings every Thursday at 2:00 P.M. Management started discussing downsizing off the
Phase 1 job, “around August, the end of August, first of September” according to Vail.

That evidence must be considered in the light of credited testimony regarding
Floyd’s conversations with first Pate, then Vail, in the week before his termination. Both
Pate, then Vail, told Floyd he would continue to have a job.

By examining those two events (i.e., the management discussions and the
conversations Floyd had with Pate then Vail) it is apparent that even though management
had been discussing a possible downsizing since August or September, the only two
members of management involved in those discussions that testified regarding those
meetings, were sure during the week before October 28 that Waldo Floyd would not be
laid off. The only testimony showed that even though downsizing had been discussed in
almost every weekly management meeting since August or September, management felt
that Floyd would not be laid off. Instead, Respondent told Floyd that he would be
transferred to another job at Mr. Carroll’s dirt pit.

When taken together, the management meetings and Floyd’s conversations the
week before his layoff show that nothing occurred up until the week before Floyd’s
layoff, that contributed to his termination. Therefore, I shall examine the record to find
what, if anything, caused management to change from a belief that Floyd would not be
laid off during the week before his layoff, to a decision to terminate Floyd.

15 Myers allegedly agreed to a date for his layoff but quit before that date in order to accept another
job.
13

JD(ATL)—47—03

The record showed that one thing of significance did occur during that one-week
period immediately before the termination of Floyd. That was Respondent’s receipt of the
Union’s demand for recognition. Respondent received that demand at 2:16 p.m. on
October 28. It immediately interrogated all its employees on all its jobs about the Union
and then, around 5:00 p.m., it terminated Waldo Floyd. There was no evidence of any
other event during the last several days before Floyd’s termination, which allegedly
caused Respondent to change its mind regarding its continued employment of Waldo
Floyd.

Respondent’s records show that it employed 17 people in the grading, milling and
asphalt plant on the Georgia Ports Authority – Container Berth 1 Project (R Exh. 1).16

As to the 17 positions, five of those employees were fired for cause. Those were
Nicholas Evans, Jason Barnwell, William Crask, Michael Tilley and John Wilson (R Exh.
1). Evans and Barnwell were fired on January 29, 200317 because they were consistently
late for work. William Crask was fired on 10/16/02 for insubordination. Michael Tilley
was fired on 8/20/02 for failing a drug test. John Wilson was fired on 6/13/02 because he
discussed “employee wage rates among co-workers.” Tilley and Crask were terminated
after Respondent allegedly started its layoff discussions in August. Even though neither
was laid off, their terminations created jobs that were never filled on the Phase 1 job.18

Since Respondent had fired Wilson, Tilley and Crask for cause, it was left with 14
employees including foreman, laborer, laborer/operator, operator and operator/foreman,
on October 28, 2002. After Floyd was laid off on that day, no other employee was
terminated by layoff or otherwise, until November 819 when Robert Singleton was laid
off for lack of work. Collen Doyle was laid off for lack of work on December 13. No one
else was terminated after October 28 and before January 1, 2003.

Respondent’s records (GC Exh. 17, Replaced), show as follows regarding the
number of regular time and overtime hours worked on the Project 1 job (CB1 SITE
WORK-GPA) after September 30, 2002:

9/30-10/06/02 396.00 hours 232.50 overtime 628.50 total
10/7-10/13/02 912.50 281.50 1,194.00
10/14-10/20/02 421.50 114.00 535.50
10/21-10/27/02 302.00 128.50 430.50
10/28-11/03/02 288.00 122.00 410.00
11/04-11/10/02 318.00 94.50 412.50
11/11-11/17/02 774.00 99.50 873.50

16 Respondent worked on phase 1 of that Port Authority job from April or May to December 2002.
17 As shown above, Respondent offered evidence that the Phase 1 job was completed in December
2002. If so, Evans and Barnwell were fired after that job was completed.
18 There was no showing that the discharges of Tilley and Crask were even considered in dealing
with the possible reduction in force. Those discharges should have relieved to some extent the
pressure to layoff other employees.
19 That occurred after Respondent received the Union’s unfair labor charge on November 5.
14

JD(ATL)—47—03

11/18-11/24/02 1,043.00 440.50 1,483.50
11/25-12/02/02 737.50 61.50 799.00
12/03-12/09/02 643.00 44.50 687.50

The above shows that after Floyd’s layoff, Respondent had work that required
4666 total hours of work before December 9, 2002 of which 862.5 hours would be
overtime work.

In consideration of the above figures by themselves, I am unable to find evidence
that supported Respondent’s October 28 reduction in force. Moreover, it is important to
keep in mind that both Kenneth Pate and Joseph Vail assured Floyd that he would not be
laid off during the week before his termination. Therefore, if the above records show
anything, they must show something occurred between the time Pate and Vail told Floyd
he would not be laid off and October 28. With that in mind, I shall question what if
anything is shown in Respondent’s records regarding the one-week periods before the
layoffs of Floyd, Singleton and Doyle.

During the workweek before Floyd’s layoff the Phase 1 crew worked 430.50 total
hours. During the workweek before Singleton’s layoff the crew worked 412.50 total
hours. During the workweek before Doyle’s layoff the crew worked 687.50 total hours.

The above figures also show the slowest one-week period occurred when there
was no layoff. The slowest week was during the 10/28-11/03 week when the total number
of hours was 410.00. The amount of work performed during the week before Floyd’s
termination and after Pate and Vail stated that he would not be laid off, does not justify a
change in thinking to any greater extent than what occurred during several other
workweeks.

Therefore, I find there was no convincing proof that anything other than protected
activity occurred that would cause Respondent to decide to initiate a layoff one week
after it expressed its belief that Waldo Floyd would not be laid off. Its records failed to
show why Respondent decided to commence a layoff by terminating anyone on October
28.

Floyd was selected as first cut due to attitude and careless operation of
equipment around structures:20

As to this issue, Respondent’s biggest hurdle is explaining why Floyd was
selected as the first employee to be laid off for lack of work, when he had been assured
by both Pate and Vail during the prior week that he would not be laid off.

20 I found above that Respondent failed to show it would have laid off any employee on October 28
in the absence of Floyd’s Union activities. Therefore, Respondent failed to justify Floyd’s layoff
regardless of the alleged reasons why he was selected ahead of all other employees for the October
28 layoff. However, out of caution, I shall assume, for the sake of this discussion, that Respondent
did show it would have laid off one or more employees in the absence of its employees’ Union
activities. In that regard, I have considered whether the evidence proved that Floyd would have
been the first selected for layoff, in the absence of his Union organizing activities.
15

JD(ATL)—47—03

The record showed that Floyd was never disciplined before October 28. In fact
Floyd was complemented about his work. Even though Project Manager Vail remarked
that Floyd was slow in operating the motor grader when Floyd was tested before he was
hired in July, both Joseph Vail and Steve Motes complemented Floyd’s work. Vail said
that Floyd was his most dependable employee and Motes told Floyd that he had a good
eye for grade.

There was no evidence showing that anything other than its knowledge of the
Union’s recognition demand, occurred during the week before Floyd’s discharge to
change the circumstances that existed when Floyd talked with Pate and Vail.

I find that the evidence failed to show that Respondent would have selected Floyd
for termination in the absence of his Union organizing activities.

Respondent’s failure to show there was no other work for Floyd:

In addition to the above, there remains a question as to whether Floyd would have
been transferred to another job upon completion of project 1. As shown above, during the
week before his termination, both Kenneth Pate and Joseph Vail told Floyd that he would
continue to work after project 1. In that regard, there was no credible evidence in the
record which proved that work was no longer available on any of Respondent’s jobs and
especially those at Mr. Carroll’s dirt pit, on and after October 28.

In view of the full record I find that Respondent terminated Floyd because of its
Union animus and the evidence failed to prove that Floyd would have not been
terminated in the absence of his Union organizing activities.

Conclusions of Law

1. By threatening to discharge its employees, by threatening its employees
with plant closure, because of their Union activities; and by unlawfully interrogating its
employees about the Union; Respondent, Carroll & Carroll, Inc. has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.

2. By discharging and failing to reinstate employee Waldo Floyd because of
his Union activities, the Respondent, Carroll & Carroll, Inc. has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act

Remedy

Respondent having engaged in unfair labor practices, I order it to cease and desist
and to take certain affirmative action designed to effectuate the policies of the Act.

16

JD(ATL)—47—03

Respondent having unlawfully discharged and failed to reemploy Waldo Floyd, is
hereby ordered to immediately reinstate Floyd to his former job, or if that job no longer
exists, to a substantially equivalent job, and to make Floyd whole for all loss of pay 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 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:21

ORDER22

The Respondent, Carroll & Carroll, Inc., its officers, agents, and representatives,
shall

1. Cease and desist from:

(i) Threatening its employees with discharge because of its
employees’ activities on behalf of International Union of Operating Engineers, AFL-CIO
Local 474, or any other labor organization.

(ii) Threatening its employees with plant closure because of its
employees’ activities on behalf of a labor organization.

(iii) Unlawfully interrogating its employees about their activities
on behalf of a labor organization.

(iv) Discharging and refusing to reemploy its employees
because of its employees’ activities on behalf of a labor organization.

(v) In any like or related manner restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the
Act.

(i) Within 14 days from the date of this Order offer immediate
reinstatement to Waldo Floyd to his former job, or, if that job no longer exists, to a

21 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 purposes.
18 If this Order is enforced by a Judgment of the 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.”
17

JD(ATL)—47—03

substantially equivalent job and make Floyd whole for all lost pay and other benefits
suffered since his October 28 discharge.

(ii) Within 14 days from the date of this Order, remove from its files
any reference to the unlawful discharge of Waldo Floyd and within 3 days thereafter
notify Floyd in writing that this has been done and that the discharge will not be used
against him in any way.

(iii) Within 14 days after service by the Region, post at its facility or
office in Savannah, Georgia copies of the attached notice marked “Appendix.”23 Copies
of the notice, on forms provided by the Regional Director for Region 10, after being
signed by the Respondent's authorized representative, shall be posted by the Respondent
immediately 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. In the event that the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since November 2001.

(v) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C.

______________________
Pargen Robertson
Administrative Law Judge

23 If this Order is enforced by a Judgment of the 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.”
18

JD(ATL)—47—03

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 had found that we violated Federal labor law and
has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT threaten to discharge our employees because of their activities on
behalf of International Union of Operating Engineers, AFL-CIO Local 474 or any other
labor organization.

WE WILL NOT threaten our employees with plant closure because of their protected
and union activities.

WE WILL NOT unlawfully interrogate our employees because of their protected and
union activities.

WE WILL NOT discharge or fail to properly reinstate any of our employees because
you engage in organizing activity on behalf of International Union of Operating
Engineers, AFL-CIO Local 474 or any other labor organization.

WE WILL offer Waldo Floyd immediate reinstatement to his former job, or, if that job
no longer exists, to a substantially equivalent job.

WE WILL make Waldo Floyd whole for all loss wages and other benefits incurred by
him since October 28, 2002.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed you by Section 7 of the Act.
19

JD(ATL)—47—03

WE WILL, within 14 days from the date of the Board’s Order, remove from our files
any reference to the unlawful discharge of Waldo Floyd and WE WILL, within 3 days
thereafter, notify Floyd in writing that this has been done and that his discharge will not
be used against him in any way.

CARROLL & CARROLL, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information
from the Board’s website: www.nlrb.gov.
233 Peachtree Street NE, Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (404) 331-2877.
20