DSI Enterprises

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 444 (N.L.R.B. 1993)

444
311 NLRB No. 47
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The judge, in par. 11 of sec. II,B, of his decision, inadvertently
referred to the discharge of James Lewis, Jerry Wheeler, and Samp-
son Wheeler as occurring on September 8, 1991. The three were dis-
charged on September 6, 1991.
DSI Enterprises, Inc. and James Lewis. Case 5–CA–
22205
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 24, 1993, Administrative Law Judge
David S. Davidson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Angela S. Anderson, Esq., for the General Counsel.
Joseph L. Gibson Jr., Esq., of Silver Spring, Maryland, for
the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. The
charge in this case was filed on September 6, 1991, and the
complaint issued on October 21, 1991. The complaint alleges
that Respondent terminated James Lewis, Jerry Wheeler, and
Sampson Wheeler because they engaged in protected con-
certed activities, thereby violating Section 8(a)(1) of the Na-
tional Labor Relations Act. Respondent denies the commis-
sion of any unfair labor practices.
The trial in this case was held in Baltimore, Maryland, on
May 20, 1992. Briefs have been received from counsel for
the General Counsel and the Respondent.
I. JURISDICTION
Respondent, a Maryland corporation with a place of busi-
ness in Baltimore, Maryland, is engaged as a contractor in
the construction of concrete walls, stairs, and sidewalks. It
annually performs services valued in excess of $50,000 with-
in Maryland for enterprises which are directly engaged in
interstate commerce. I find that Respondent is an employer
engaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that it will effectuate
the policies of the Act to assert jurisdiction in this case.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
During the summer and fall of 1991, Respondent subcon-
tracted with the George Hyman Company to perform site
work at Camden Yard, the new baseball stadium being con-
structed in Baltimore to be the home of the Baltimore Ori-
oles. Roosevelt Laboo is the president of Respondent. Victor
Thomas was job superintendent, and Art Brookshire was a
foreman on the job. Respondent admits that Laboo and
Thomas were agents of Respondent and that they and
Brookshire were supervisors within the meaning of the Act
at times material to this case.
James Lewis, Jerry Wheeler, and Sampson Wheeler were
hired on July 30, 1991, as carpenters to build forms for con-
crete under the supervision of Brookshire. The Wheelers,
who are brothers, rode to and from the jobsite with Lewis,
and the three of them worked in a crew with one additional
carpenter and one or two laborers.
At the end of the first week of August they received their
first paychecks. Lewis attempted to cash his paycheck at Re-
spondent’s bank which refused to cash it, telling him that
there were insufficient funds in the account. Lewis told the
Wheelers about it and suggested that they not go back on the
job. The Wheelers took the position that they should give
Respondent a chance to straighten out the problem and that
they should not quit. The three of them continued to report
to work.
Lewis cashed his paycheck at a pawn shop, and thereafter
heard that the pawn shop was going to have him locked up
because he had cashed a bad check. Lewis and Sampson
Wheeler spoke to Brookshire who promised to speak to
Laboo about it. Later Brookshire told Lewis that Laboo
would take care of it. Some time later Lewis learned that
Laboo had paid the pawn shop the amount of the paycheck
but not the $25 fee charged for the return of the check.
At the end of his second week on the job, Sampson
Wheeler tried to cash his paycheck and was told at the bank
that there were insufficient funds in Respondent’s account.
On August 30, the Friday before Labor Day, Lewis went
to the bank to cash his paycheck and was again told that it
could not be cashed because of insufficient funds. He and
Sampson Wheeler tried to get their paychecks cashed that
afternoon at other places without success. Jerry Wheeler,
who previously had no problem with his paychecks, usually
deposited his paycheck in his savings account. When Lewis
and his brother were unable to cash their checks, he decided
not to deposit his paycheck that weekend.
On the following Tuesday Lewis took the day off. The
Wheelers went to the jobsite and told Brookshire that they
were not going to work until they got their paychecks
cashed. At Thomas’ suggestion, Brookshire let them go to
cash the paychecks. They went to Respondent’s bank where
Sampson Wheeler was again told that he could not get his
paycheck cashed. They went back to the jobsite and told
Brookshire that they could not get their checks cashed.
445DSI ENTERPRISES
1 I have credited Wheeler as to Laboo’s statements to him. Laboo
was not specifically asked about them but denied singling Lewis out
at the jobsite. For reasons set forth below, I have not credited Laboo.
2 Lewis and Jerry Wheeler testified to Laboo’s statements. Laboo
denied that he knew who Davis was, that he had any contact with
the stadium authority, that he knew anything about Lewis’ visit to
the authority, or that he singled Lewis out while at the jobsite. Hav-
ing observed the witnesses as they testified, I do not believe that
Lewis and the Wheelers fabricated three separate statements by
Laboo before and after their terminations showing that Laboo was
looking for Lewis, that Laboo was aware of their dissatisfaction with
Respondent, and that Respondent was dissatisfied with them. Even
from Thomas’ testimony, it is clear that when the three men were
terminated, they immediately connected their terminations with their
dissatisfaction over the bad checks, a connection more likely under
their version of the facts than Laboo’s. In addition, although Laboo
testified that he did not know who was employed on the job and
did not participate in decisions to hire and lay off employees, Thom-
as testified that he had weekly meetings with Laboo at which they
discussed problems and projections at the jobsite. I have credited
Lewis and the Wheelers as to Laboo’s statements, and I have not
credited Laboo’s denials or his testimony that he played no role in
the decisions to lay off the three employees.
3 After initially denying that he had any conversation with the
three about their checks, Thomas ultimately agreed that the three
men asked if they were fired because of their complaints about the
checks. His own version of his response was not a denial but an am-
biguous disavowal of responsibility. Thomas also contradicted him-
self as to his awareness of the problems with the paychecks, initially
denying any knowledge about it and ultimately testifying that he
heard one of the Wheelers complain to Brookshire about his pay-
check. I have not credited Thomas as to his response to the three
at the time of their termination or Laboo’s role in their termination.
4 According to Laboo, he had no such conversation with Wheeler,
although he believed that some time after the layoff one of the three
called his office and said that he would be sorry if they did not put
the caller back to work. For reasons set forth above, I have credited
Sampson Wheeler.
Brookshire told them that since half the day was gone they
should take the rest of the day off and come in the next day
when Laboo would be there with money to cash their pay-
checks.
The next day Lewis and the Wheelers rode to work to-
gether. In the car they talked about the problem with their
paychecks. Lewis said that he was going to go to the stadium
authorities about it. At the jobsite Lewis again spoke to
Brookshire about the checks. He told him that he couldn’t
keep working and getting bad checks, and that he was not
going to go to jail because of Laboo’s checks. That afternoon
about an hour before his 3:30 quitting time Lewis walked
over to the nearby stadium authority office and complained
about the bad paychecks to someone he believed was named
Tom Davis. Davis told him that Laboo was coming to the
jobsite to straighten the paychecks up that afternoon, and that
if he did not, Lewis should return to his office the next
morning.
Laboo came to the jobsite at about 2:30. At one point be-
fore the end of the shift, he asked Sampson Wheeler who
James Lewis was. According to Wheeler, he did not respond,
and Laboo said, ‘‘Well, I will find out.’’1
At the end of the shift, the men went to Respondent’s
trailer to change clothes. Laboo was in the trailer and started
to cash paychecks. Laboo cashed Jerry Wheeler’s paycheck
and then asked, ‘‘Who is James Lewis?’’ Lewis identified
himself, and then said, ‘‘Well, you didn’t have to go to the
man on me.’’ Lewis just took his money and left.2
When Lewis and the Wheelers reported for work the next
day, Brookshire and Thomas told them that there was no
work for them that day but to come to work the next day.
The next day, September 6, when they reported for work,
Thomas told them that Respondent did not have any work
for them and that they were fired. They asked whether they
were fired because they complained about the bad paychecks.
Thomas replied that it was because they complained about
the paychecks too much and didn’t give Laboo a chance.3
After the three men left the jobsite, Sampson Wheeler
stopped at a telephone to call Laboo and asked him if he told
his foreman to fire them because they asked about their pay-
checks. He testified that Laboo answered, ‘‘Well, you all was
unsatisfied with us and we was unsatisfied with you all, and
that is it.’’4
On the same day that they were laid off, Lewis and the
Wheelers went to the Regional Office of the Board, and
Lewis filed the charge in this case.
B. Concluding Findings
Counsel for the General Counsel contends that Lewis and
the Wheelers engaged in protected concerted activity and that
they were discharged because of it. Respondent contends that
their activity relating to their paychecks was not concerted
and that they were laid off for lack of work.
As the Board stated in Mike Yurosek & Son, Inc., 306
NLRB 1037 (1992):
We will find that individual action is concerted where
the evidence supports a finding that the concerns ex-
pressed by the individual are logical outgrowth of the
concerns expressed by the group. See Salisbury Hotel,
283 NLRB 685, 687 (1987); Every Woman’s Place,
282 NLRB 413 (1986), enfd mem. 833 F.2d 1012 (6th
Cir. 1987).
The first time Lewis discovered that he could not cash his
check, the Wheelers were with him. They discussed it in the
car riding to and from work, and although Lewis wanted to
quit the job the first time he was unable to cash his check,
the Wheelers talked him out of it. Lewis and Sampson
Wheeler complained to Brookshire about the checks, and
Brookshire said he would speak to Laboo. Lewis complained
to Brookshire at least one additional time about Laboo’s fail-
ure to pay the fee for the returned check to the pawn shop
where Lewis had cashed his first check. On Labor Day
weekend all three were together when the bank again refused
to cash the paychecks. Although Jerry Wheeler did not try
to cash his check, based on the experience of the others he
decided not to deposit it. The day after Labor Day, Lewis
did not come to work, and the two Wheelers refused to work
until their checks were cashed. Brookshire and Thomas were
aware of their concern over the checks.
Although Lewis testified that he did not go to the stadium
authority on behalf of anyone else and that he acted only for
himself, his visit to the stadium authority was a logical out-
growth of the continuing concern expressed by him and the
Wheelers over the problem with their paychecks. Moreover,
in the light of the earlier complaints and the Wheelers’ re-
fusal to work on Tuesday until their paychecks were cashed,
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Respondent’s treatment of the three as a group supports the
inference that Respondent believed that the employees were
engaged in concerted activity. See Daniel Construction Co.,
277 NLRB 795 fn. 4 (1985). I find that the three employees
engaged in concerted activity in protesting the problem with
their paychecks and that Respondent believed that their activ-
ity was concerted.
Laboo’s statement to Lewis when he came to the trailer
2 days before the discharges supports the inference that be-
tween the time that Lewis went to the stadium authority and
the time that Laboo cashed the paychecks at the end of the
shift, Davis contacted Laboo at the trailer to follow up on
Lewis’ complaint. But even if Laboo’s reference was to
Lewis’ complaint to Brookshire over Laboo’s handling of the
dishonored check he cashed at the pawn shop, Laboo’s state-
ment to Lewis in the trailer shows that Laboo sought to iden-
tify Lewis because of his protest over the check problem.
That statement, Thomas’ answer to the question asked by the
three at the time of their termination, and Laboo’s answer to
Sampson Wheeler when he telephoned Laboo immediately
after the terminations all support the inference that the termi-
nations were caused by the protests over the dishonored
checks.
Under the Board’s decision in Wright Line, 251 NLRB
1083, 1089 (1980), once the General Counsel has made a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in Respondent’s
decision to discharge the three employees, the burden shifts
to Respondent to demonstrate that the discharges would have
taken place even in the absence of the protected conduct.
At the time of the terminations Lewis and the Wheelers
were working on Brookshire’s crew on a portion of the job,
referred to as Home Plate Plaza, which was drawing to a
close. Thomas and another crew were building a wall on an-
other portion of the job, referred to as Russell Street, which
was completed in mid-September. A third portion, referred to
as Picnic Grove, was supposed to begin soon. Brookshire’s
crew was to go to the Picnic Grove portion of the job when
it started.
The crew at Home Plate Plaza was making forms for a
wall and had finished the outside but not the inside. In addi-
tion to completing the wall, the job at Home Plate Plaza
called for framing a circular staircase. On the day before
Lewis and the Wheelers were terminated, they were told that
there was no work for them that day, and there is no evi-
dence to indicate a reason to believe otherwise. The testi-
mony of Lewis and Jerry Wheeler establishes that on the last
day they worked the materials they needed to finish the wall
or start the staircase were not on the jobsite. Laboo testified
that the plans for the wall were changed and that the wall
on which the crew was working was taken out and changed.
He also testified that underground utilities and a sprinkler
system had to be installed before the staircase could be built.
Laboo testified that Respondent was at a standstill on the
jobsite; only Russell Street was going, and that was coming
to an end.
Thomas also testified that work had slacked off at the time
of the layoff and that work at Picnic Grove had not started
yet. When Lewis and the Wheelers were laid off, most of the
others in Brookshire’s group had already been laid off or had
quit. Thomas testified that Respondent put in the staircase at
Home Plate Plaza in late September or early October. A car-
penter was moved from Russell Street to finish the work at
Home Plate Plaza and then moved to Picnic Grove which
started in late September or early October. Respondent next
hired carpenters to work on the Camden Yard contract in Oc-
tober. One worked from October 18 to 29. A second and
third worked from November 12 to December 20, and from
November 13 to January 13, respectively.
I have discredited contradicted testimony of Thomas and
Laboo, and there are inconsistencies between Thomas’ and
Laboo’s testimony relating to whose employees completed
the work on the staircase at Home Plate Plaza and the exist-
ence of carpentry work on another part of the job. However,
there is no evidence to contradict their testimony that work
had come to a standstill on the jobsite, except for completing
the Russell Street wall. Their testimony with respect to the
work on the jobsite is otherwise essentially consistent and to
a limited extent supported by the testimony of Lewis and
Wheeler as to the materials available and the hiatus of almost
6 weeks between the date of their termination and the next
time Respondent hired a carpenter for the jobsite. There is
no evidence of work at other locations for Respondent which
might have been performed or of any practice relating to the
recall of laid-off employees at Respondent’s construction
sites when work picked up. Although Lewis and the Wheel-
ers undoubtedly had expectations that there was additional
work for them based on what Brookshire had told them, the
evidence fails to establish that Respondent had work they
could have performed at any other location.
I find that the evidence supports the conclusion that the
need for the services of Lewis and the Wheelers had come
to a halt on September 8, that the need for additional car-
penters did not resume until mid-October, and that Respond-
ent has established that they would have been laid off for
lack of work on September 8 without regard to their pro-
tected concerted activity. Accordingly, I shall recommend
that the complaint be dismissed.
CONCLUSION OF LAW
The General Counsel has failed to prove that Respondent,
DSI Enterprises, Inc., violated Section 8(a)(1) of the Act as
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The complaint dismissed.