D A Collins Refractories

National Labor Relations Board - Board Decisions

Oct 25, 1984

272 N.L.R.B. 931 (N.L.R.B. 1984)

D A COLLINS REFRACTORIES 931
Bearden and Company, Inc d/b/a D A Collins Re
fractones and Donald Richard Addis Case 10-
CA-18652
25 October 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 22 July 1983 Administrative Law Judge Wil
ham N Cates issued the attached decision The Re
spondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat
ed 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order
The judge found that the Respondent' violated
Section 8(a)(1) by maintaining and enforcing a
policy of refusing to recall from layoff status em
ployees who file for state unemployment benefits
He also found that the Respondent violated Section
8(a)(1) and (3) by failing to recall Donald Richard
Addis because he filed for state unemployment
benefits and because he was not a member of a
union For the reasons set forth below we dis
agree
I FACTUAL BACKGROUND
The Respondent wholesales fire bricks and insu
lation and relines industrial furnaces Its employees
are subjected periodically to layoff and recall The
Respondent employed Donald Addis from 1973
until 1978 and rehired him in 1982 During 1982
Addis was laid off He applied for state unemploy
ment compensation benefits in July and September
1982 Subsequently, the Respondent began to recall
employees from layoff status, but did not recall
Addis
In October 1982 Addis filed a charge alleging
that he was not recalled because he filed for unem
ployment compensation benefits A complaint
issued on 1 December 1982 alleged that th- Re
spondent had violated Section 8(a)(1) by maintain
ing and enforcing a policy of not recalling from
layoff status employees who filed claims for state
unemployment benefits and by its refusal to recall
Addis because he filed such a claim In its answer
to the complaint, the Respondent averred that
i In view of our disposition of the Instant case we find it unnecessary
to pass on the judge s finding that Bearden and Company Inc d/b/a D
A Collins Refractories and D A Collins Refractories of Savannah Inc
collectively referred to as Respondent are joint employers
Addis was not recalled because he was not a
member of a union and, therefore, he could not be
employed on union jobs
An amended complaint was filed 4 April 1983 al
leging, in addition to the 8(a)(1) allegations in the
original complaint, that the Respondent violated
Section 8(a)(3) by refusing to recall Addis because
he was not a union member The Respondent filed
an amended answer denying the commission of any
unfair labor practices
The credited testimony demonstrates that the
Respondent did maintain and enforce a general
policy of refusing to recall from layoff status em
ployees who had filed state unemployment com
pensation claims The evidence also establishes that
Addis was not recalled because he filed such a
claim In its exceptions, the Respondent does not
appear to contest these findings
Regarding Addis' union membership status, the
only affirmative evidence that indicates the Re
spondent relied on this factor in refusing to recall
Addis is the statement contained in the Respond
ent s original answer At the hearing Respondent
President Collins testified that the Respondent was
unaware of Addis status until the instant charge
was filed As for the statement in the original
answer, Collins testified that he did not review the
document before he signed it
Other record evidence demonstrates that Addis
belonged to a union at one time, but his member
ship lapsed in the mid 1970s It is also clear that
the Respondent employed Addis during periods
when he belonged to a union as well as during pe
nods when he did not
II THE ADMINISTRATIVE LAW JUDGE'S
DECISION
Based on the foregoing facts the judge conclud
ed that the Respondent failed and refused to recall
Addis for two reasons (1) because Addis filed a
claim for unemployment compensation and (2) be
cause Addis was not a union member Regarding
the first reason, the judge found that Addis was en
gaged in protected concerted activity when he
filed and pursued his claim for unemployment ben
efits Self Cycle & Marine Distributor Co, 237
NLRB 75 (1978) He concluded, therefore, that the
Respondent violated Section 8(a)(1) by refusing to
recall Addis because of his protected concerted ac
twines The judge also concluded that Respondent
violated Section 8(a)(1) by maintaining and enforc
ing its policy of not recalling employees who file
for unemployment benefits
Regarding the second reason for not recalling
Addis, the judge found that the Respondent was
bound by the statement in its original answer that it
272 NLRB No 135
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to recall Addis because he was not a union
member. The judge found that, in view of that
statement, the Respondent's evidence that Addis'
union membership status played no role in its deci-
sion and that the admission in the answer was in
error were "of no avail to Respondent as a de-
fense."
III. DISCUSSION AND ANALYSIS
After the judge's decision in the instant case, the
Board issued Meyers Industries, 268 NLRB 493
(1984). In Meyers, the Board reestablished the defi-
nition of concerted activity that existed before A lle-
luia Cushion Co., 221 NLRB 999 (1975), and held
that for activity to be concerted it must "be en-
gaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employ-
ee himself." Meyers, at 497. Accordingly, the Board
in Meyers overruled Alleluia and its progeny.
A review of Self Cycle & Marine Distributor Co.,
237 NLRB 75 (1978), on which the judge relied,
demonstrates that it falls squarely within the cate-
gory of cases Meyers overruled. In Self Cycle the
Board held that employee Bramlett was engaged in
concerted activities when she filed an unemploy-
ment compensation claim because such claims arise
out of the employment relationship, are one aspect
of national labor policy, and are matters of
common interest to other employees. 237 NLRB at
75-76 Because Bramlett was discharged, in part,
for filing an unemployment compensation claim,
the Board, citing Alleluia, concluded that the dis-
charge violated Section 8(a)(1).
In view of the definition of concerted activity es-
tablished by Meyers, Self Cycle is no longer good
law. Accordingly, under a Meyers analysis, Addis
was not engaged in concerted activity when he
filed his claim for unemployment compensation and
the Respondent did not violate the Act by refusing
to recall him because he filed such a claim.
Consistent with the foregoing, we also must re-
verse the judge's finding that the Respondent vio-
lated Section 8(a)(1) by maintaining and enforcing
a policy of refusing to recall employees who file
for unemployment compensation. The judge's find-
ing that the policy is unlawful is inextricably inter-
twined with a definition of concerted activity that
is incompatible with the Meyers standard. Because
the Respondent's rule is aimed at and has only been
applied to activities that are not concerted, the
policy does not violate Section 8(a)(1).2
2 Our dissenting colleague would find Meyers Industries is inapplicable
here because the Respondent's policy of not recalling employees who file
for unemployment benefits restrains concerted activity He argues that
unemployment benefits are not a purely individual concern He argues
further that the rule prohibits group action with respect to unemploy-
ment benefits because the rule applies to all employees We disagree and
Finally, we also disagree with the judge's finding
that the Respondent's refusal to recall Addis violat-
ed Section 8(a)(3). As stated above, the only af-
firmative evidence that supports the judge's finding
is the statement in the Respondent's original
answer that Addis was not recalled because he was
not a union member. In the judge's view, this "ad-
mission" was binding on the Respondent and,
therefore, the judge did not undertake a thorough
examination of all the evidence submitted. We find
that the judge erred.
The judge was correct in holding that a state-
ment in a party's pleading is an admission. It is also
true that a statement in a pleading constitutes a "ju-
dicial" admission that is binding on the party
making the admission. See 4 Wigmore, Evidence §
1064 (Chadbourn rev. 1972). It is also well estab-
lished, however, that when an amended pleading is
filed, the "judicial" admission loses its binding
effect. Id. at § 1067. Thus, while the statement in
the original pleading is admissible, 3 it is subject to
explanation and rebuttal by the party making the
admission. Id.
In the context of these evidentiary principles, we
find that the record as a whole does not support
the conclusion that the Respondent refused to
recall Addis because he was a union member.
There is no evidence whatsoever that the Respond-
ent knew or cared about Addis' union status prior
to the instant charge. Collins' testimony to this
effect was uncontradicted. In addition, the Re-
spondent employed Addis on past jobs when he
was not a union member as well as when he was a
member. In neither instance did Addis' union mem-
bership, or lack thereof, appear to matter to the
Respondent. In short, we find insufficient evidence
on the record as a whole to conclude that the Re-
spondent relied on Addis' union membership status
in deciding not to recall him. Accordingly, we
shall dismiss this portion of the complaint as well.
find that Meyers is applicable here The policy affects only each individ-
ual's right to claim unemployment benefits The filing for benefits is an
intrinsically individual act and remains so even if a group of employees
simultaneously file separate claims The benefit Itself is contingent on the
eligibility of each individual claimant Clearly, the filing for benefits is an
Individual act undertaken by the individual solely on his own behalf and
for his own benefit rather than for the mutual aid and benefit of other
employees absent evidence that the action was predicated on group activ-
ity Our colleague's attempt to establish that this intrinsically individual
act is a term and condition of employment and that the Respondent's
policy thus restrains concerted activity has no rational basis He draws no
support for his position by relying on NLRB v City Disposal Systems, 104
S Ct 1505 (1984) That case is inapposite to the instant case which does
not involve the invocation of a right rooted in a collective-bargaining
agreement Our finding that the Respondent's policy does not affect, let
alone restrain, any concerted activity is based on the clear meaning of the
statutory language and is squarely within Meyers Industries
3 The Respondent's argument that the admission ceases to exist when
an amended pleading is filed is incorrect The statement still stands as an
admission if introduced in evidence as such That was the case here
D A COLLINS REFRACTORIES 933
ORDER
The complaint is dismissed
MEMBER ZIMMERMAN dissenting
The Respondent not only refused to recall em
ployee Addis because he filed for state unemploy
ment benefits but maintained and enforced a policy
of refusing to recall from layoff status any employ
ees who filed for state unemployment benefits My
colleagues find that in both actions the Respond
ent s conduct is lawful under Meyers Industries, 268
NLRB 493 (1984) Employee Addis, they say,
acted alone and solely on his own behalf therefore,
he was not engaged in concerted activity and has
no protection under the Act Similarly the Re
spondent's personnel rule regarding the filing for
state unemployment benefits is outside the reach of
the Act because it is aimed at activities that are not
concerted I agree with the conclusion that Meyers
Industries controls when the sole issue is the refusal
to recall an employee for filing an unemployment
claim For the reasons stated in my dissenting opin
ion in that case, however, I would find such a re
fusal to recall a violation of Section 8(a)(1) of the
Act Moreover I disagree that Meyers Industries
has anything to do with the determination of the
lawfulness of the Respondent's rule on unemploy
ment claims and because the Respondent's refusal
to recall employee Addis cannot be considered
apart from the Respondent's general rule I do not
find that Meyers Industries controls any issue in this
case
Unemployment has been a continuing concern in
the economic life of this nation almost since the in
ception of the industrial system 1 It has long been
recognized that layoffs and terminations are an in
tegral part of the employment relationship and
have been the subject of state and Federal protec
tive laws for nearly half a century In response to
an early attack upon the constitutionality of a state
unemployment act, the Supreme Court stated
Expenditure of public funds under the present
statute, for relief of unemployment, will afford
some protection to a substantial group of em
ployees, and we cannot say it is not for a
public purpose
If the purpose is legitimate because public, it
will not be defeated because the execution of it
involves payment to individuals `Individ
ual interests are aided only as the common in
terest is safeguarded [Citations omitted ]2
1 Carmichael v Southern Coal Co 301 U S 495 (1937)
2 Carmichael at 517-518
It is self evident that unemployment compensa
tion is not a purely individual matter, but instead
falls within the broad category of wages, hours,
and other terms and conditions of employment If
employees acted together concerning unemploy
ment claims, their activity would certainly be pro
tected by the Act even under the majority position
in Meyers Industries 3 By the same reasoning, if a
union or group of employees sought retraction of
an employer s rule proscribing the filing of unem
ployment claims, that concerted action would be
statutorily protected
Here, the Respondent s rule makes it a condition
of continued employment that employees not file
unemployment claims during seasonal layoffs Any
possible question concerning the protected charac
ter of unemployment claims, therefore, has been
put to rest by the Respondent s rule This rule does
not exempt group action and therefore prohibits
the type of protected concerted activity mentioned
above To state, as does the majority that the rule
is aimed at activities that are not concerted, is to
hold that concerted action can never be involved
in the filing of unemployment claims The error of
such a holding is obvious
The Respondent's rule constitutes a classical in
terference with the exercise of protected rights and
I would so find without-need to rely on the theory
of presumed concert articulated in my dissenting
opinion in Meyers Industries The maintenance of
the Respondent s unlawful rule requires a different
analysis of the Respondent s refusal to recall Addis
than would otherwise be applied Under the major
ity view in Meyers Industries Addis filing of the
unemployment claim is not a form of concerted ac
tivity and the Respondent's action toward Addis
standing alone is perfectly lawful However the
Respondent s refusal to recall Addis does not stand
alone It occurs against the background of a gener
al rule proscribing unemployment claims In this
context the refusal to recall may interfere with the
exercise of protected rights even though Addis,
himself, was not engaged in protected activity In
NLRB v City Disposal Systems 104 S Ct 1505 fn
10 (1984) The Supreme Court noted that
Under Section 8(a)(1) an employer commits
an unfair labor practice if he or she
interfere[s] with [or] restrain[s] concerted ac
tivity It is possible therefore for an employ
er to commit an unfair labor practice by dis
charging an employee who is not himself in
volved in concerted activity but whose ac
3 Such employee action is of course not limited to the group filing of
individual claims For example one employee might aid another s claim
by testifying in an eligibility hearing
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tons are related to other employees concerted
activities in such a manner as to render his dis
charge an interference or restraint on those ac
twines In the context of the Interboro doc
trine, for instance, even if an individual s invo
cation of rights provided for in a collective
bargaining agreement for some reason, were
not concerted activity the discharge of that
individual would still be an unfair labor prac
bee if the result were to restrain or interfere
with the concerted activity of negotiating or
enforcing a collective bargaining agreement
Such is the case here The Respondent s enforce
ment of the rule against Addis not only discourages
and interferes with the individual claims, but also
with any group employee action that might other
wise occur concerning unemployment claims For
this reason as well as for the reasons of the dissent
ing opinion in Meyers Industries the Respondent s
refusal to recall Addis is unlawful
My colleagues claimed, in Meyers Industries, that
earlier Boards had unwisely expanded the meaning
of concerted activity in the doctrine of Alleluia
Cushion Co, 221 NLRB 999 (1975) In their zeal to
correct this so called error, their overreaching mis
application of Meyers Industries has now resulted in
wrongfully contracting the plain meaning of pro
tected concerted activity
DECISION
STATEMENT OF THE CASE
WILLIAM N CATES Administrative Law Judge This
matter was heard by me on May 6 1983 at Savannah
Georgia The charge was filed by Donald Richard
Addis an individual (Donald Addis) on October 22
1982 A complaint and notice of hearing issued by the
Regional Director for Region 10 of the National Labor
Relations Board (Board) on December 1 1982 An
amended complaint and notice of hearing issued on April
4 1983 The amended complaint alleges that Bearden
and Company Inc d/b/a D A Collins Refractories (D
A Collins Atlanta)' violated Section 8(a)(1) and (3) of
the National Labor Relations Act (Act) by maintaining
and enforcing a policy whereby it refuses to recall em
ployees from layoff status who file for unemployment
benefits with state agencies and because since about Sep
tember 15 1982 it has failed and refused to recall its em
ployee Donald Addis because he filed for unemployment
benefits with a state agency and because of his lack of
membership in a union D A Collins Atlanta filed
timely answers to the original and amended complaints
D A Collins Atlanta s answers will be discussed more
fully
' The name of Respondent appears as amended at the trial The origi
nal caption of the case was D A Collins Refractories
The General Counsel and Respondent were represent
ed at the hearing by counsel and all parties were provid
ed with the opportunity to present evidence make argu
ment and file briefs
On the entire record in this case including my obser
vation of the demeanor of the witnesses and my careful
consideration of counsel for the General Counsel and
Respondent s arguments at the hearing I make the fol
lowing
FINDINGS OF FACT
I JURISDICTION
D A Collins Atlanta is a Georgia corporation with an
office and place of business located at Atlanta Georgia
where it is engaged in the wholesaling of fire bricks and
insulation and the relining of industrial furnaces During
the 12 months immediately preceding issuance of the
amended complaint which is a period representative of
all times material D A Collins Atlanta performed serv
ices valued in excess of $50 000 for employers within the
State of Georgia which in turn during this same period
of time purchased and received at their Georgia facili
ties goods and services valued in excess of $50 000 di
rectly from suppliers located outside the State of Geor
gia
D A Collins Refractories of Savannah Inc (D A
Collins Savannah) is a Georgia corporation with an
office and place of business located at Savannah Geor
gia where it is engaged in the wholesaling of fire bricks
and insulation and the relining of industrial furnaces
During the 12 months immediately preceding issuance of
the amended complaint which is a period representative
of all times material herein D A Collins Savannah per
formed services valued in excess of $50 000 for employ
ers within the State of Georgia which in turn during
this same period of time purchased and received at their
Georgia facilities goods and supplies valued in excess of
$50 000 directly from suppliers located outside the State
of Georgia
It is also admitted and I find that D A Collins At
lanta and D A Collins Savannah are employers engaged
in commerce within the meaning of Section 2(2) (6) and
(7) of the Act
Counsel for the General Counsel urged at the trial that
D A Collins Atlanta and D A Collins Savannah are
joint employers for the purpose of the Act Respondent
contended they are two separate and distinct corpora
tions and do not constitute joint employers The joint
employer issue will be discussed infra
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Joint Employer Issue
A threshold question in the instant case is whether D
A Collins Atlanta and D A Collins Savannah should be
treated as Joint employers The relevant facts pertinent
to this issue are not in dispute
D A Collins Atlanta was incorporated in April 1966
(R Exh 4) and is engaged in the wholesaling of fire
bricks and insulation and the relining of industrial fur
D A COLLINS REFRACTORIES 935
naces D A Collins is the president of and serves on the
board of directors of D A Collins Atlanta Collins wife
owns all the stock of D A Collins Atlanta D A Col
lins Savannah was initially established as a division of D
A Collins Atlanta D A Collins Savannah was incorpo
rated in October 1977 (R Exh 5) and is engaged in busi
ness identical to that of D A Collins Atlanta Warren
Dundon a former employee of D A Collins Atlanta is
the president and 80 percent owner of D A Collins Sa
vannah The remaining 20 percent of D A Collins Sa
vannah is owned by D A Collins Atlanta The 80 per
cent owned by Dundon is financed 100 percent by D A
Collins D A Collins is vice president and treasurer of
D A Collins Savannah D A Collins also sits on the
board of directors of D A Collins Savannah D A Col
lins receives 20 percent of the profits of D A Collins
Savannah
D A Collins Atlanta refers business to D A Collins
Savannah likewise employees of D A Collins Atlanta
are referred to and utilized by D A Collins Savannah
on projects being performed by D A Collins Savannah
Employees of D A Collins Savannah are referred to D
A Collins Atlanta for projects of D A Collins Atlanta
although employees being referred from Savannah to At
lanta are referred on a somewhat less frequent basis D
A Collins Atlanta and D A Collins Savannah have on
occasion shared clients and they never bid against each
other for work On occasion foremen are sent from D
A Collins Atlanta to D A Collins Savannah to help
start Savannah projects Customers that have contacted
D A Collins Atlanta at a time when it has been too
busy to service them have been referred to D A Collins
Savannah Equipment is rented by D A Collins Sayan
nah from D A Collins Atlanta
D A Collins confers with Warren Dundon on busi
ness considerations regarding the operation of D A Col
lins Savannah D A Collins Atlanta did not protest un
employment claims filed against it (R Exhs 2 and 3)
even though the claimant had last worked for D A Col
lins Savannah D A Collins Atlanta s policy with re
spect to whether employees who file for unemployment
would thereafter be reemployed was conveyed by D A
Collins Atlanta to D A Collins Savannah and that
policy was implemented as demonstrated by the situation
involving Donald Addis D A Collins Atlanta effective
ly refers employees to or recommends against employees
being utilized by D A Collins Savannah
In making a determination regarding an issue of joint
employer status the Board looks to four principal factors
in determining whether two arguable separate employers
will be treated as joint employers These factors are (1)
interrelation of operations (2) centralized control of
labor relations (3) common management and (4)
common ownership or financial control Holiday Inn of
Benton 237 NLRB 1042 1044 (1978) See also Alle Areci
bo Corp 264 NLRB 1267 at fn 1 (1982) The Board fur
ther noted in Holiday Inn of Benton that no individual
factor is controlling in making a determination as to joint
employer status however emphasis is placed on the first
three factors set forth above particularly the critical
factor of centralized control of labor relations See also
DAKA and International House 257 NLRB 325 (1981)
Although there is some overlap in the four key ele
ments of a joint employer relationship I shall address
them separately
As to the control of labor relations there are the fol
lowing considerations Employees are recommended for
reemployment or continued employment by D A Col
lins and his recommendations are carried out both at D
A Collins Atlanta and D A Collins Savannah The
same is true for his recommendations against reemploy
ment Wage rates are governed by union scale for the
geographical area involved however when employees
from D A Collins Atlanta are sent to D A Collins Sa
vannah they are paid their Atlanta area wage rates The
policy of D A Collins Atlanta with respect to discour
aging employees from filing for unemployment claims is
carried out by D A Collins Savannah and that fact is
demonstrated by D A Collins Savannah s refusing to
recall Donald Addis
Respecting the element of interrelation of operations it
is obvious that D A Collins Atlanta and D A Collins
Savannah are engaged in the exact same business In fact
D A Collins Savannah was originally started as a divi
sion of D A Collins Atlanta When D A Collins Atlan
ta s business is of such a volume that it cannot service its
customers it refers the business to D A Collins Sayan
nah The two share clients on occasion D A Collins
Atlanta and D A Collins Savannah never bid against
each other for work
As to the element of common management the record
discloses that at the highest levels of management Sa
vannah President Dundon confers with Atlanta President
Collins on business considerations regarding the oper
ation of D A Collins Savannah D A Collins is an offi
cial and serves on the board of directors of both corpo
rations At the lower levels of management foremen
from D A Collins Atlanta are sent to start up projects
at D A Collins Savannah D A Collins Atlanta and D
A Collins Savannah supervisors supervise employees as
signed from the other to their location for work
Finally as to the element of common ownership or fi
nancial control the record demonstrates that D A Col
lins Atlanta and D A Collins Savannah are inextricably
intertwined D A Collins Atlanta 2 owns 20 percent of
D A Collins Savannah and D A Collins provided 100
percent of the financing for the 80 percent ownership of
D A Collins Savannah that is held by Savannah Presi
dent Dundon
In agreement with counsel for the General Counsel I
find that the factors outlined above weighed in their to
tality compel a finding that D A Collins Atlanta and
D A Collins Savannah have so intertwined the two op
erations to such a degree that they function as a joint
employer Accordingly I find that D A Collins Atlanta
and D A Collins Savannah constitute a joint employer
for the purposes of the Act
For ease of understanding I shall hereinafter refer to
D A Collins Atlanta and D A Collins Savannah joint
ly as Respondent
2 All the stock of D A Collins Atlanta is owned by D A Collins
wife
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13 The Policy Regarding the Recall of Employees
Who File For Unemployment Benefits
Paragraph 6 of the amended complaint alleges that
since about April 23 1982 Respondent has maintained
and enforced a policy whereby it refuses to recall em
ployees from layoff status who file for unemployment
benefits with state agencies
Randall Addis was called as a witness by counsel for
the General Counsel he impressed me as a credible wit
ness and I credit his testimony Addis testified without
contradiction that he had a telephone conversation with
President D A Collins in approximately 1978 in which
conversation Collins told him that he would reemploy
him but if he ever applied for unemployment benefits
again he would not reemploy him
Randall Addis had a conversation with Supervisor
Henry Hamilton 3 at Hamilton s home in Seneca South
Carolina in 1981 According to Addis Hamilton told
him that President Collins was not going to recall former
employee Bruce Long because Long had obtained unem
ployment benefits Both Hamilton and Collins testified
and neither denied nor contradicted Addis testimony in
this respect Glen Addis a former bricklayer foreman
credibly testified without contradiction that he was told
by President D A Collins in 1981 not to reemploy
Ralph Clark Jr because Clark had drawn unemploy
ment benefits
Randall Addis testified he had a telephone conversa
tion with D A Collins Savannah President Dundon in
September 1982 In the conversation Dundon instructed
Addis to get his brother Jerry Addis and report for
work at a project being constructed by D A Collins Sa
vannah in Franklin Virginia Dundon told Randall
Addis he had nothing personal against Randall s brother
Donald Addis but he (Dundon) had been in contact
with ID A Collins in Atlanta and Collins had told him
not to use Donald Addis anymore because he had been
drawing unemployment benefits 4
Dundon testified he did not recall Donald Addis for
employment in September 1982 because Mr Collins
asked me not to on the basis that he had other people
that he would rather -)ut to work people with higher se
monty and who in fact had higher qualifications And
also Mr Addis was already receiving compensation for
unemployment President Collins testified regarding his
conversation with Dundon as follows
What brought about that conversation is Mr Addis
was sent down with his brothers in August [1982]
to work with Warren [Dundon] He [Donald Addis]
came back and filed unemployment against my
Company He was sent down (to Savannah) in Sep
tember to work He came back and filed unerpploy
ment against my Company Warren [Dundon]
called again and I asked him to get ahold of Ran
dall [Addis] and Jerry [Addis] the other two broth
ers but because of economic conditions—The busi
3 The parties stipulated that Hamilton was a supervisor within the
meaning of Sec 2(11) of the Act
4 R Exhs 2 and 3 indicate Donald Addis filed for state unemployment
benefits in July and September 1982
ness our business in Atlanta was off some 30 per
cent last year and I had these other people free I
wanted someone else down there working to earn
the money because Mr Donald Addis was already
drawing unemployment And that s exactly what I
told Mr Dundon
Collins also testified that he had a labor policy of not
wanting employees to draw unemployment benefits be
cause he paid his employees so much money Collins re
lated based on the amount of money he paid his employ
ees taken into consideration with the time they were out
of work he did not approve their drawing unemploy
ment benefits because he thought it was unnecessary
Collins further testified Secondly all the unemployment
insurance claims naturally raise my insurance rates
Based on the credited testimony s and admissions out
lined above I am fully persuaded and find that Respond
ent at all times since April 23 1982 has maintained and
enforced in violation of Section 8(a)(1) of the Act a
policy whereby it refuses to recall employees from layoff
status who file for unemployment benefits with state
agencies
C The Refusal to Recall Donald Richard Addis
The amended complaint at paragraphs 7 8 and 9 al
leges that Respondent since about September 15 1982
has failed and refused to recall from layoff its employee
Donald Addis because he filed for unemployment bene
fits with a state agency and because of his lack of mem
bership in a union 6
Donald Addis worked for Respondent from 1973 until
1978 was rehired in 1979 and continued his employment
until the fall of 1982 Addis received state unemployment
benefits after he filed for them in 1982
It is undisputed that Donald Addis was not reem
ployed by Respondent on and after September 1982
Further as fully outlined above part of the reason for
Respondent s refusal to reemploy Addis was the fact that
he had filed for state unemployment benefits
Respondent advanced in its original answer other rea
sons for not reemploying Donald Addis Respondent
stated in its original answer The Savannah Corporation
could not have worked Donald Richard Addis on their
job if they had so desired for the reason it was a union
job and Addis had not been a union bricklayer since
May 1975 The original answer further stated in part
D A Collins Refractories Savannah Georgia did
not use him [Donald Addis] on a job on or about
September 6 1982 and thereafter because the jobs
5 I do not credit D A Collins testimony made in response to a lead
mg question that he did not discriminate against those who drew unem
ployment benefits
6 Paragraph 5 of the amended complaint alleges that Local No 2
International Union of Bricklayers and Allied Craftsmen is a labor orga
nization within the meaning of Sec 2(5) of the Act Respondent in its
answer pleads It was without knowledge with respect to the allegation
Counsel for the General Counsel did not put on any evidence with re
spect to that allegation of the complaint Although I can not make a find
mg that the Union is a labor organization within the meaning of Sec 2(5)
of the Act I do not find that to distract from my making a disposition of
the instant case
D A COLLINS REFRACTORIES 937
required Union employees and the Complainant
[Donald Addis] had ceased to be a Union bricklayer
The Complainant could not be used on Union
jobs because of his non union status D A
Collins Refractories Atlanta Georgia had a proper
nght not to work the Complainant [Donald Addis]
after he failed to renew his Union membership and
continued to be a union bricklayer [G C Exh
1(g)]
Section 14(b) of the Act allows states such as the State
of Georgia to maintain right to work laws which do not
require an individual to join a union in order to be gain
fully employed in the work force Therefore Respond
ent could not lawfully refuse to reemploy Donald Addis
because of his lack of union membership Cf C B as
play Service 260 NLRB 1102 (1982)
The Board has long held that filing or pursuing an un
employment compensation claim is a protected concerted
activity Self Cycle & Marine Distributor Co 237 NLRB
75 (1978) The Board stated in Self Cycle that unemploy
ment compensation benefits arose out of the employment
relationship and was part of the national labor policy
The Board further noted that the right to pursue or enti
tlement to unemployment claims without retaliation was
a matter of common interest to all employees since each
at some time might find themselves in a situation where
they would need to avail themselves of unemployment
compensation benefits The Board concluded it was a
violation of Section 8(a)(1) of the Act for an employer to
take adverse action against an employee because the em
ployee filed for or pursued claims for unemployment
benefits
Based on the above facts and applicable law I am per
suaded that counsel for the General Counsel established
a prima facie case sufficient to support an inference that
protected conduct was a motivating factor in Re
spondent s decision not to recall Donald Addis to em
ployment in September 1982 See Wright Line 251
NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981)
and NLRB v Transportation Management Corp 462 U S
393 (1983)
Once counsel for the General Counsel has established
protected conduct was a motivating factor in Respond
ent s decision not to recall Donald Addis the burden
then shifted to Respondent to demonstrate the same
action would have taken place even in the absence of
protected concerted conduct Respondent failed to meet
its burden in the instant case I reject Respondent Presi
dent Collins explanation at trial that he did not ade
quately read nor did he mean to say what was set forth
in Respondent s original answer to the original corn
plaint wherein the answer stated that Addis was not re
called in part because of his lack of membership in the
union Respondent s answer in that regard was part of
the formal pleadings in the instant case and Collins oath
of verification was attached to his original answer Col
lins testimony at tnal that he did not carefully read the
document his then attorney prepared for him is of no
avail to Respondent as a defense
I also reject Respondent s contention that it did not
recall Donald Addis because he walked off a project of
Respondent s in Alabama I reject this contention be
cause the incident occurred several years before Septem
ber 1982 Addis had been reemployed by Respondent for
an extended period of time subsequent to his walking off
the earlier project Respondent s contention that Addis
was not recalled because he was not a good employee is
not borne out by the facts The evidence establishes that
Addis was never disciplined during his entire work histo
ry with Respondent
I am persuaded that Respondent failed to recall
Donald Addis in September 1982 and thereafter for two
reasons The two reasons were (1) because he filed for
state unemployment benefits and (2) because he was not
a member of the Union I find that Respondent s two
reasons for not recalling Donald Addis to be reasons that
violated Section 8(a)(1) and (3) of the Act I therefore
find as alleged in the complaint that Respondent violat
ed Section 8(a)(1) and (3) of the Act when since about
September 15 1982 it failed and refused to recall to em
ployment its employee Donald Addis
CONCLUSIONS OF LAW
1 Bearden and Company Inc d/b/a D A Collins
Refractories and D A Collins Refractories of Savannah
Inc are employers engaged in commerce and in oper
ations affecting commerce within the meaning of Section
2(2) (6) and (7) of the Act
2 Bearden and Company Inc d/b/a D A Collins
Refractories and D A Collins Refractories of Savannah
Inc are the joint employers (jointly Respondent) of all
their employees located both at Atlanta Georgia and
Savannah Georgia
3 By since on or about April 23 1982 maintaining
and enforcing a policy of refusing to recall employees
from layoff status who file for unemployment benefits
with state agencies Respondent has violated Section
8(a)(1) of the Act
4 By failing to recall from layoff status employee
Donald Richard Addis about September 15 1982 be
cause he filed for unemployment benefits with a state
agency and because of his lack of membership in a
union Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act
5 The violations of the Act noted above constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices it is recommended that Respond
ent be ordered to cease and desist therefrom and take the
affirmative action described below which is designed to
effectuate the policies of the Act
With respect to the necessary affirmative action it is
recommended that the joint Respondent be ordered to
offer immediate employment recall to Donald Richard
Addis and that he be recalled to his former position of
employment or if that position no longer exists to a
substantially equivalent position without prejudice to his
seniority or any other rights or privileges he previously
enjoyed It is also recommended that the joint Respond
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent be ordered to make Donald Richard Addis whole for
the losses which he suffered as a result of the unlawful
failure to recall him to employment Backpay for Addis
and interest thereon shall be computed in the manner
described in F W Woolworth Co 90 NLRB 289 (1950)
and Florida Steel Corp 231 NLRB 651 (1977) See gen
erally Isis Plumbing Co 138 NLRB 716 (1962) It is fur
ther recommended that the Joint Respondent expunge
from its records any reference to its unlawful failure to
recall Addis and that Respondent notify Addis in writ
ing that this has been done and that evidence of Re
spondent s unlawful failure to recall him will not be used
as a basis for future personnel actions against him See
Sterling Suga s 261 NLRB 472 (1982) Finally it is rec
ommended that Respondent be ordered to post the
notice to employees for 60 consecutive days in order that
employees may be apprised of their rights under the Act
and the Joint Respondent s obligation to remedy its
unfair labor practices
[Recommended Order omitted from publication ]