Esco Elevators

National Labor Relations Board - Board Decisions

Aug 28, 1984

271 N.L.R.B. 1262 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Esco Elevators, Inc. and International Union of Ele-
vator Constructors, Local 21, affiliated with
International Union of Elevator Constructors.
Case 16-CA-10486
28 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 29 December 1982 Administrative Law
Judge Richard J. Linton issued the attached deci-
sion. The Charging Party filed exceptions and a
supporting brief, in support thereof, and the Re-
spondent filed a brief in support of the judge's de-
cision.
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
We agree with the judge's finding that the evi-
dence presented in support of the complaint is in-
sufficient to establish a prima facie case that the
Respondent discriminated against Roy Boring by
denying him a wage increase in April 1982 and by
discharging him in May 1982.
As found by the judge, the General Counsel's
and the Charging Party's reliance on a discrimina-
tory motive based on Boring's testimony adverse to
the Respondent in another unfair labor practice
proceeding in September 1981 is seriously undercut
by the fact that after that hearing Boring received
in October 1981 what was the highest merit wage
increase in his employment history with the Re-
spondent. In this setting and as explained further
we agree with the judge's conclusion that there is
an insufficient basis to infer an unlawful motive.
Our dissenting colleague criticizes what he char-
acterizes as the judge's giving "equal weight to in-
ferences drawn from clearly unequal factual prem-
ises," and concludes that the General Counsel and
the Charging Party established a prima facie case
that Boring was discharged unlawfully. However,
it is our colleague who incorrectly measures the
weight of the inferences drawn from evidence pre-
sented on the General Counsel's direct case. By fo-
cusing on the timing of the events here, Member
Zimmerman ignores or gives only superficial con-
sideration to evidence which supports the judge's
conclusion. Boring's testimony establishes that no
one ever mentioned the adverse Board decision or
his testimony in that case to him. More important-
ly, his testimony reveals that he told independent
271 NLRB No. 199
management consultant Charles Stultz in early
April 1982 that his goal was to become production
manager, complained to him that others in manage-
ment were incompetent, and told him that he had
applied for a job elsewhere. Boring admitted that
he believed that Stultz reported their conversation
to President Loughridge because 2 weeks later
Loughridge told him he had no future with the
Company and would never become production
manager. Boring's comments to Stultz, so clearly
reflected in Loughridge's rebuke to Boring, are not
merely coincidentally related. Significantly, Bor-
ing's testimony on cross-examination also reveals
that he had a history of criticizing management
personnel. The fact is that Boring was warned
when his pay raise was denied that his continued
employment was being questioned-for reasons
which have nothing to do with his testimony 8
months earlier. Thus, it is clear that our colleague's
analysis is based on suspicion and timing, and it is
equally clear when the inferences are properly
weighed that the judge correctly concluded that
the General Counsel and the Charging Party failed
to establish a prima facie case that Boring's dis-
charge violated Section 8(a)(4) of the Act.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, I would find that the
General Counsel established a prima facie case that
the Respondent violated Section 8(a)(4) and (1) of
the Act by denying a merit wage increase to Roy
Boring and by subsequently terminating his em-
ployment. Accordingly, I would remand the case
to the judge for the purpose of receiving evidence
in the Respondent's defense and issuing a supple-
mental decision.
The General Counsel presented evidence
through alleged discriminatee Roy Boring that in
September 1981, while employed by the Respond-
ent, he had testified against the Respondent in an
unfair labor practice trial; that a decision adverse
to the Respondent in that case issued on 12 Febru-
ary 1982 relying heavily on Boring's testimony;
that in April 1982 the Respondent denied a wage
increase to Boring for the first time during his em-
ployment; and that the Respondent's production
manager, Bill Baty, discharged Boring on 28 May
1982 while at the same time assuring him that his
work performance was good and that he would re-
ceive a favorable recommendation for another job.
The judge found, and I agree, that the foregoing
1262
ESCO ELEVATORS
evidence supports the inference "that Respondent
fired Boring because his testimony played a signifi-
cant part in Judge Nation's finding against the
company in the McKinney case because of the
timing and the fact, as Boring quotes Baty, that
Boring had done a good job."
However, the judge then-and in my view im-
properly-drew a series of competing inferences,
all based on a parcel of testimony adduced by the
Respondent on cross-examination of Boring. Boring
testified that 4 to 6 weeks before he was terminated
he was interviewed by management consultant
Daniel Stultz. It is undisputed that, before Boring
proceeded with the interview, he ascertained from
Stultz that his comments would be kept confiden-
tial. Boring then responded to Stultz' questions
about his job, the Company, and his colleagues. In
response to a question by Stultz as to Boring's am-
bitions and goals with the Respondent, Boring re-
plied that one day he hoped to become the produc-
tion manager. Additionally, Boring admitted that
during the interview he disparaged several mem-
bers of management and indicated that he had ap-
plied for a job elsewhere.
Boring also testified that, when he learned that
his pay raise had been denied, he asked the Re-
spondent's president, Bob Loughridge, why the
Respondent had withheld the raise. Loughridge
first responded, "You have no future with the com-
pany." Boring asked for an explanation of this
comment and Loughridge said, "You're not going
to become the production manager." Based on this
testimony, the judge stated:
A study of the record discloses that the
timing argument overlooks a critical point-
the Stultz factor. Boring testified that he was
interviewed by Stultz in March or April, or
about 4 to 6 weeks before he was terminated.
More to the point, Boring testified that (in his
opinion) Loughridge, in stating that Boring
was not going to become the production man-
ager, was referring to the goal Boring has ex-
pressed to Stultz. Without considering any of
Respondent's evidence, the inference is rather
strong that Stultz reported the details of his
interview with Boring to Loughridge notwith-
standing any assurance of confidentiality Stultz
gave to Boring. That being the case, we there-
fore see that Loughridge had received a report
by about mid-April 1982 that Boring not only
had described at least one vice president as in-
competent, but that he also had filed an em-
ployment application with another company.
(Footnote and transcript references omitted.)
The judge concluded this inferential sequence by
stating:
. . .Loughridge became incensed that Boring,
bearing the rather exalted title of assistant to
the production manager, would express the
opinion that Vice President Cal Smith was in-
competent, and that as . . . Boring had filed
an employment application elsewhere, demon-
strating that he was seeking to leave Respond-
ent's employ anyway, Loughridge decided
that he would help persuade Boring to leave
quickly by denying him a pay increase. When
Boring did not leave promptly, Esco fired him.
It is clear that Loughridge thought the pay in-
crease denial would spur Boring to depart, and
Loughridge said just that to Boring on the oc-
casion of their May 28 conversation.
On the basis of these speculations, the judge found
that the inferences supporting and refuting the ille-
gality of Respondent's actions were equal, that the
General Counsel had failed to establish a prima
facie case, and that the complaint should be dis-
missed.
The error here is that the judge has given equal
weight to inferences drawn from clearly unequal
factual premises. First, there is no evidence to sub-
stantiate Boring's mere opinion about what Lough-
ridge meant when referring to Boring's potential
for becoming the production manager. Since
Loughridge did not testify, his state of mind during
this conversation is unknown. Secondly, with no
supporting evidentiary basis, the judge then went
beyond Boring's opinion to infer further that Stultz
had disclosed to Loughridge the entire content of
his interview with Boring. The judge ignored the
undisputed fact that Stultz had given Boring an as-
surance of confidentiality prior to their conversa-
tion. Boring's unsubstantiated opinion suggested
only the disclosure of his desire to become produc-
tion manager, and there is no other evidence in the
record that Stultz in any way breached his promise
of confidentiality. Finally, the judge made a quan-
tum jump over the facts and divined that Lough-
ridge became so "incensed" about Boring's conver-
sation with Stultz that Loughridge legitimately de-
cided to oust Boring from the Company. Even as-
suming that Loughridge heard a full report from
Stultz, how did the judge know that Loughridge
became "incensed"?
For the reasons stated above I do not agree that
any inference can be drawn solely from the fact of
the Stultz interview and Boring's opinion as to
Loughridge's comment. Certainly the speculation
does not rise to the level of an inference equal to
that initially found by the judge-that Boring was
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fired because of his testimony in the prior Board
proceeding. Accordingly, I find that the General
Counsel established a prima facie case that the Re-
spondent violated Section 8(a)(4) and (1) of the Act
and that in the absence of any valid, competing in-
ference or evidence the case should be remanded
to the judge for further hearing.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in Fort Worth, Texas, on
August 30 and 31, 1982, pursuant to the July 8, 1982
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 16 of the Board. The complaint is based on a
charge filed June 3, 1982, and subsequently amended, by
International Union of Elevator Constructors, Local 21,
affiliated with International Union of Elevator Construc-
tors (Union or Local 21) against Esco Elevators, Inc.
(Respondent or Esco).1
In his complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(4) and (1) of the Act by
withholding a scheduled wage increase from Roy Boring
in April and by discharging him on May 28 because he
testified on September 8, 1981, in an unfair labor practice
trial in Case 16-CA-9551 involving Esco.
By its answer Respondent admits certain factual mat-
ters, but it denies violating the Act.
Based on the entire record, and my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
A Texas corporation with its principal place of busi-
ness in Fort Worth, Texas, Respondent manufactures,
sells, and installs hydraulic passenger and freight eleva-
tors and thereafter services and repairs such elevators.
During its past fiscal year, and from its Texas facilities,
Respondent sold products valued in excess of $50,000 di-
rectly to customers located outside the State of Texas.
Respondent admits, and I find, that it is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local 21 is a labor
organization within the meaning of Section 2(5) of the
Act.
All dates are for 1982 unless otherwise indicated.
2 Although Dugger testified that this relationship began shortly after
Esco was formed, Respondent's sales brochure discloses that Esco has
been in business since 1932 (R. Exh. 2, at 1).
3 Tom Montgomery was the manager of the Midlothian Entrances Di-
vision and Foreman Charles Nethery was the only supervisor there.
Montgomery chose not to follow consolidation to Fort Worth, but Neth-
ery did and joined the new Fort Worth manufacturing operation as a su-
pervisory foreman.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent's organization-Roy Boring-
Contentions
Esco is divided into three functions: manufacturing,
sales, and maintenance-service. Robert E. Dugger, busi-
ness manager of Local 21, testified that since about 1940
Esco has been signatory to successive collective-bargain-
ing agreements covering Respondent's maintenance and
service division (service) employees (Tr. 240).2 So far as
the record reflects, Respondent's manufacturing and sales
divisions have never been unionized.
Esco's service division, under Vice President Glenn
Young, has its principal location at Euless, a town locat-
ed about midway between Dallas and Fort Worth,
Texas. It also has sales and service offices in Houston
and San Antonio, Texas, and in Oklahoma City, Oklaho-
ma.
Before the summer of 1981 the entrances for Respond-
ent's elevators were manufactured in Midlothian, a town
southeast of Fort Worth, and the balance of its elevator
was manufactured at an old facility in Fort Worth.3
Around July 1, 1981, Respondent consolidated its manu-
facturing division at a new 200,000 square feet produc-
tion facility on the south side of Fort Worth under Vice
President and Manager of Manufacturing Bill J. Baty.
Although Baty had been in overall charge of manufac-
turing for a number of years, this appeared to be the first
time, at least in many years, that the manufacturing oper-
ation had been consolidated under one roof.4
Baty testified that he reports directly to Esco's presi-
dent, R. F. "Bob" Loughridge, and that he consults with
Loughridge weekly (Tr. 160, 161). Although the number
of manufacturing employees is not specified, it appears
that Foreman Nethery supervises about 15 employees at
Fort Worth (Tr. 204). Alleged discriminatee Boring testi-
fied that he dealt with some eight or nine foremen at the
Fort Worth plant (Tr. 36-37, 254). This apparently in-
cluded all the manufacturing supervisors. It therefore
would appear that Baty had 100 or more rank-and-file
production employees.
As can be imagined, the manufacture of elevators pro-
ceeds from a lot of engineering specifications and other
paperwork. One production function involves the coordi-
nation of the specification and other paperwork among
the supervisors. To handle this paperwork and coordinat-
ing function, Production Manager Baty5 hired Roy
Boring around June 1 to fill a recent vacancy in the posi-
tion of assistant to the production manager (Tr. 106).6
' There appears to be some distinction between manufacturing and
construction, for Baty testified that Esco maintains a "construction oper-
ation" at Respondent's old production plant in Fort Worth (Tr. 105).
6 While Respondent admitted the complaint's description of vice presi-
dent and manager of manufacturing, Baty agreed that he also is called the
production manager. (Tr. 104.)
6 In his testimony (Tr. 14), and in his June 8, 1982, pretrial affidavit (R.
Exh. 1, at i), Boring describes the title as assistant production manager.
Notwithstanding Boring's view of his title, his own description, and that
by Baty, of his job duties and responsibilities disclose that his function
Continued
1264
ESCO ELEVATORS
Boring had been employed as parts manager in Esco's
service division at Euless. This position was not part of
the bargaining unit, and Boring has never been a member
of Local 21. Boring apparently expressed interest in the
vacancy under Baty, and was interviewed by Baty. Ini-
tially Boring indicated he would not accept the job be-
cause of the pay and apparently because he would have
to relinquish possession of a company vehicle. He soon
changed his mind, however, telling Baty that he hoped
to make up the financial difference later (Tr. 109). Bor-
ing's salary record reflects that his June 8, 1981, transfer-
promotion incresed his weekly pay from $296.40, to
$306.40, reflecting a pay increase of 3.37 percent.
Boring's first assignment was to spend about a month
at the Midlothian facility learning what he could about
the manufacture of entrances there. He returned to Fort
Worth about July 4. While at Midlothian he formed a
rather low opinion of Nethery's supervisory ability.
Moreover, he concluded that Nethery, who once asked
him to supervise the men while Nethery took a nap, did
not earn the salary he was receiving (Tr. 271). He fur-
ther testified that Midlothian Manager Montgomery and
he agreed that Nethery was not doing his job (Tr. 34).
Boring testified that he observed Nethery sleeping at his
desk after his lunch period at Midlothian (Tr. 258). At
some point on his return to Fort Worth, Boring told
Baty that in his opinion Nethery needed more control
over his employees (Tr. 34). Boring concedes that at dif-
ferent times at Fort Worth he expressed his low opinion
of Nethery's supervisory qualities to employees such as
Gerald Batty, and that some of the foremen shared his
views (Tr. 272). The relationship between Boring and
Nethery is a significant element in Respondent's defense.
Boring worked 3 years for Esco-from May 1979 to
his discharge on May 28, 1982. His first 2 years were in
the service division. Respondent reviews the pay of em-
ployees every 6 months for merit pay increases. During
his tenure, Boring received five merit pay increases (one
being his promotion raise) and one general cost-of-living
increase, following his employment on May 20, 1979, at
$250 a week. Boring testified that he had never failed to
receive a merit increase every 6 months during his em-
ployment (Tr. 16). This is borne out by his history card.
Based on the raises shown on his employee history card
(R. Exh. 3), Boring received pay increases in his weekly
salary as follows:
was that of a production clerk. No party contends that Boring held any
supervisory or managerial status in the job in question. Of course, as
counsel for the General Counsel observes, even if Boring had possesed
such authority, that factor would not be a defense to the allegation here
that Respondent's actions toward Boring violated Sec. 8(a)( 4) of the Act.
7 The percentage computations are my own based on the figures
shown Not counting his 10/81 raise, Boring's average merit raise was
4.19 percent.
R The months for the first and second pay raises were obliterated on
the exhibit Presumably they represent approximately 10/79 and 4/80.
Date
5-20-79
-27-798
-28-80
9-25-80
3-4-81 C-O-L
6-8-81
10-9-81
5-28-82
Amount
Hired
12.50
10.00
12.50
11.40
10.00
19.60
Terminated
Increase'
5.00
3.81
4.59
4.00
3.37
6.40
Boring testified that he was due a merit increase in
April 1982. This would have been 6 months after his last
pay increase. Baty confirms that in April Boring's name
appeared on the list of those employees scheduled to re-
ceived their 6 months' pay review (Tr. 121). Boring was
denied on increase, and on May 28 he was fired.
As earlier noted, the General Counsel alleges that Re-
spondent denied Boring the April increase, and fired him
in May, because in September 1981 he testified unfavor-
ably to Esco in Case 16-CA-9551. In their arguments
the General Counsel and the Charging Party refine their
positions so as to argue that the event which triggered
Boring's downfall was the administrative law judge's
February 12, 1982 decision in Case 16-CA-9551. They
contend that Boring's testimony played a major role in
the judge's unfavorable findings against Respondent in
that case.
Respondent denies that Boring's failure to receive a
pay raise in April or his discharge in May was in any
way based on his NLRB testimony, and argues that
Boring brought such unfavorable personnel actions on
himself by engaging in "plant politics" which, while un-
dertaken to advance his career at the expense of Fore-
man Nethery's, backfired and resulted in his own dis-
charge.
2. Boring's testimony in Case 16-CA-9551
Case 16-CA-9551 involves Respondent's December 5,
1980 discharge of Charles McKinney, then Local 21's
president. The Union filed an NLRB charge over
McKinney's discharge, the General Counsel issued a
complaint against Esco on January 16, 1981, and the
matter came on for trial before Administrative Law
Judge Wallace Nations on September 8 and 9, 1981.
Judge Nations issued his decision on February 12, 1982,
finding that, as alleged, Respondent had violated Section
8(a)(1) and (3) of the Act by discharging McKinney.
Judge Nations' decision currently is on appeal before the
Board based on exceptions taken by Respondent.
As Judge Nations wrote in his decision, Respondent
based part of its defense on its assertion that McKinney
struck the first blow in a fist fight which occurred be-
tween him and Marshall Crouch, another service em-
ployee, at the Euless facility on November 26, 1980.
Boring testified before me that prior to the earlier trial
the secretary of Local 21's attorney contacted him, as-
certained that Boring had been a witness to the McKin-
ney fight, and persuaded him to visit the Union's attor-
ney (Tr. 23). On January 26, 1981, Boring met with At-
1265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torney Wheat in the lawyer's office. When Boring ex-
pressed concern over his job security if he testified, At-
torney Wheat informed him that he would be under sub-
poena, that he had nothing to be concerned about if he
told the truth (Tr. 26), and that surely Esco "would not
be dumb enough" to retaliate against him for testifying
(Tr. 32). Boring gave his statement at Wheat's office.9
At the instant hearing Boring explained that he testified
under subpoena before Judge Nations (Tr. 26).
Called by Local 21 as a witness before Judge Nations,
Boring gave testimony showing disparity of treatment
and, among other matters, that Respondent expressed no
real interest in who had thrown the first punch until
after the complaint had issued in the case. A copy of his
testimony, covering 36 pages of that transcript, is in evi-
dence as General Counsel's Exhibit 3. Judge Nations
mentions Boring by name five times,10 and it is clear
that Boring's testimony was a key factor in the findings
made against Respondent by Judge Nations.
As Judge Nations noted, Boring testified that the dis-
trict manager of the field service said, "Oh hell, when
are these boys going to grow up," as showing Respond-
ent's initial unconcern about the fight. In addition to
such quoting of a management official in his testimony,
Boring also expresed his personal opinion that Esco was
more lenient on Marshall Crouch regarding adherence to
company work and attendance rules after the fight, and,
indeed, that Esco was unfair in this regard (G.C. Exh. 3,
at 138) and in other respects as well. And not only did
Boring quote management officials regarding the fight,
he also quoted District Manager Payne and Supervisor
Hueber concerning a conversation in Payne's office, at-
tended by Boring, in which Payne expressed a lackadaisi-
cal attitude about matters McKinney had been contend-
ing were unsafe conditions (G.C. Exh. 3, at 143-144),
and that he personally did not care for Payne, his district
manager, although he respected his position (G.C. Exh.
3, at 153).
In short, there is abundant reason in Boring's 36 pages
of testimony to have caused President Loughridge, if he
were so minded, to retaliate against Boring.
B. Events Following Boring's Testimony
I. Denial of April pay increase
Notwithstanding the rather devastating nature of Bor-
ing's testimony, in October 1981, Respondent gave him
the largest pay increase he had ever received with
Esco.1 Computations reflect that his 6.40-percent in-
crease was 34.53 percent greater than his average merit
increase of 4.19 percent, and 21.88 percent greater than
his previous high merit increase of 5 percent. Boring
admits that no official of Esco ever said anything to him
9 This record does not reflect whether the statement was taken by
someone in Attorney Wheat's office or whether a Board agent met
Boring there and secured a statutory affidavit.
'1 In the slip opinion, these references appear at p. 4, L. 47, and p. 5,
L. 1, 2, 45, and 46. On 1. 43 on p. 5 Boring is described as "a current
management employee with Esco." As of September 1981, Boring had
been Baty's assistant for about 3 months.
"i Production Manager Baty testified that he was responsible for se-
curing the raise for Boring and did so because he felt that Boring was
doing a good job (Tr. 112).
about testifying at the McKinney trial (Tr. 52). Never-
theless, Boring testified that his raise did not allay his
fears, for after he testified in September others told him
that President Loughridge was the type of person one
should never cross (Tr. 33). And he crossed Loughridge,
Boring stated, by testifying at the McKinney trial.
About April 16 or 23, Boring testified, he went to see
Production Manager Baty about not having received a
pay increase (Tr. 16). Boring asked Baty if there was any
reason he had not received a pay raise. Baty replied that
there was none, and that in fact he had recommended
that Boring receive a pay increase.1 2 He asked if Baty
had any complaints or criticism about Boring's work,
and Baty replied, "No, none whatsoever." When asked if
he had any suggestions on how Boring could improve
his work, Baty answered, "No, not at this time." Boring
then asked if his failure to get a pay raise had anything
to do with his testifying at the McKinney trial. Baty re-
sponded (Tr. 17-18, 252, 273): I don't know; you'll have
to ask Mr. Loughridge on that.
About 30 minutes later, in Loughridge's office, Boring
asked the president if there was any reason he had not
received a pay raise. "You have no future with the com-
pany," Loughridge replied. When Boring asked what he
meant, Loughridge answered, "You're not going to
become the production manager." To Boring's inquiry of
whether he was doing his current job well enough to
merit a raise, Loughridge stated, "The only raises you're
going to get are the cost-of-living raises." Before Boring
could ask if there was any cause-effect relationship to his
former testimony, Loughridge started walking toward
the door saying that he had to see a Mr. Gorman, and
remarking to Boring that he and the latter would talk
about the subject later (Tr. 20, 273-274). Loughridge did
not testify.
On cross-examination Boring testified that (in his opin-
ion) Loughridge's statement that Boring was not going
to become the production manager was a direct refer-
ence to the aspiration Boring had expressed earlier that
month to Daniel Stultz, a management consultant hired
by Esco, when the latter asked Boring what his goals
and ambitions were. Boring told Stultz that his goal was
to become production manager of Esco (Tr. 53). During
Respondent's case-in-chief, Stultz testified that Lough-
ridge hired him to do a managerial study to determine
the correct corporate structure and systems for Esco's
future. In the process of interviewing management and
other employees, Stultz testified, he interviewed Boring
about April 14 (Tr. 77, 94-95). As with all such inter-
views, he gave a general, or summary, report to both
Baty and Loughridge that Boring was an unhappy em-
ployee who might cause trouble and that they should
keep an eye on him (Tr. 84, 85, 93).
Boring testified that Stultz never informed him as to
why Esco had the consultant in the plant, and he did not
recall Stultz explaining why he was interviewing Boring
12 During Respondent's case-in chief, Baty admitted that he lied to
Boring and passed the buck to Loughridge in order to gain time, and that
in truth and in fact Baty had told Loughridge that he was not giving
Boring a raise, and the reasons therefor, and Loughridge had approved
the decision (Tr. 121, 137, 171, 178-179).
1266
ESCO ELEVATORS
(Tr. 64). The interview lasted about 30 minutes, Boring
testified, during which he responded to Stultz' questions
about his position and how he felt about Esco and the
people (Tr. 47-48, 65). However, he first ascertained
from Stultz that his comments would be kept confiden-
tial by Stultz (Tr. 49).
Boring admits that when Stultz asked his opinion of
certain management officials he expressed it, and this in-
cluded his evaluation that some of the officials were in-
competent (Tr. 49). The only such official Boring named
in his testimony is Cal Smith, vice president of sales. 3
He told Stultz that he did not care for Smith. When
Stultz asked why, Boring explained that it was because
he did a poor job of explaining technical details about
equipment, such as pumps, when showing customers
through the plant (Tr. 50-51, 260). When Stultz asked if
he got along with the foremen, Boring replied that he
did so with all but one or two. As Boring recalled, no
names of the foremen were mentioned (Tr. 51). During
the interview Boring admitted to Stultz that he had made
application for employment elsewhere (Tr. 52).
2. Boring fired
Boring was fired on Friday, May 28, 1982. On that
day Baty called him into the manager's office, gave him
an envelope, told him that he had obtained 3 weeks' va-
cation pay for him, and that Boring was no longer em-
ployed with Esco (Tr. 21). Boring said he had earned the
vacation pay, and he asked whether he had done his job.
Baty answered, "You've done a good job." Why was he
being fired then, Boring asked. Baty replied:
We're not going to get into the nitty gritty; that's
all I'm going to say. It was a company decision.
Boring asked about a recommendation, and Baty re-
sponded that he would give him a good one.
Shortly thereafter Boring went to see Loughridge.
With just the two of them present in the president's
office, Boring asked if there was any particular reason
for his termination. Loughridge told him:
I told you before, you have no future with this
company. I thought you'd quit.
To Boring's inquiry whether he had done his job,
Loughridge said (Tr. 22):
That's not the point, Mr. Boring. You don't have
any future with this company.
Boring left at that point. During the rebuttal stage
Boring conceded that he did not ask Loughridge wheth-
er his prior testimony was the cause for his discharge
(Tr. 275). Boring testified that during his employment he
had received no warnings or reprimands, either oral or
written (Tr. 22).
'S Boring testified that he did not recall Stultz asking how he felt
about Glenn Young, vice president of the service division (Tr. 48).
C. The Question of a Prima Facie Case
Boring was the only witness called by the General
Counsel during his case-in-chief, and Local 21 called no
witnesses. When the General Counsel and Local 21
rested their cases-in-chief (Tr. 67), Esco moved that the
complaint be dismissed. In essence Esco argued that the
evidence showed nothing more than Boring's testimony
in September 1981, followed in February 1982 by Judge
Nations' decision, but that Boring had expressly admitted
that no agent of Respondent had made any comment to
him about testifying in the McKinney case. Thus, it was
argued, the General Counsel and Charging Party were
proceeding on nothing more than suspicion. Offsetting
that suspicion, Respondent submitted, was the fact that
the month after he testified at the earlier trial Boring re-
ceived the biggest raise of his Esco career (Tr. 69)."4
Respondent further argued that other factors admitted by
Boring, pertaining to Foreman Nethery, demonstrate that
Boring had involved himself in matters that were none of
his business.
The General Counsel and Local 21 hinge the timing of
events on the fact that it was shortly after Judge Na-
tions' decision issued that Boring's problems began, start-
ing with the April denial of a pay raise and culminating
the following month in his discharge.
At trial I denied Esco's motion on the basis of the
timing factor because I had not studied the prior testimo-
ny and Judge Nations' decision, and because there was
no record evidence that any of the reasons advanced in
Respondent's argument, such as the Nethery factor, was
a basis for the discharge. I pointed out that Boring had
asked for the reason of his discharge and was not given
one (Tr. 70-71). I cautioned, however (Tr. 71-72):
After all the evidence is in, it may appear that your
motion [is well founded] or at least that the com-
plaint should be dismissed, but at this stage, it ap-
pears that a bare1 5 prima facie case has been made.
A study of the record discloses that the timing argu-
ment overlooks a critical point-the Stultz fact on. Boring
testified that he was interviewed by Stultz in March or
April (Tr. 47), or about 4 to 6 weeks before he was ter-
minated (Tr. 64). More to the point, Boring testified that
(in his opinion) Loughridge, in stating that Boring was
not going to become the production manager, was refer-
ring to the goal Boring had expressed to Stultz (Tr. 53).
Without considering any of Respondent's evidence, the
inference is rather strong that Stultz reported the details
of his interview with Boring to Loughridge notwith-
standing any assurance of confidentiality Stultz gave to
Boring. 6 That being the case, we therefore see that
'4 At p. 17 of her brief, counsel for Local 21 suggests that Boring was
given a big pay raise in October 1981 as "a clever ploy to support later
retaliatory actions in the event that they [Esco] somehow lost the
McKinney case."
Is Although the transcript records "fair" at L. I of p. 72, the word
spoken was "bare." In one other respect I correct the record. At p 264,
L. 22. the phrase should be "adverse witness" rather than "expert wit-
ness.
1' In their briefs the General Counsel and Local 21 contend that Stultz
was nothing more than a spy sent to obtain some incriminating evidence
Continued
1267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loughridge had received a report by about mid-April
1982 that Boring not only had described at least one vice
president as incompetent, but that he also had filed an
employment application with another company (Tr. 52).
In considering the report Stultz evidently made to
Loughridge, coupled with Boring's admission that no
representative of Esco ever said anything to him about
his testifying in the McKinney case, plus the big October
1981 raise, I conclude that the evidence adduced through
the cases-in-chief of the General Counsel and Local 21
does no more that raise two possible inferences as to the
real reason for Boring's discharge. First, one can infer
that Respondent fired Boring because his testimony
played a significant part in Judge Nations' finding against
the company in the McKinney case because of the
timing and the fact, as Boring quotes Baty, that Boring
had done a good job.
A second and equally strong inference which can be
drawn is that Loughridge became incensed that Boring,
bearing the rather exalted title of assistant to the produc-
tion manager, would express the opinion that Vice Presi-
dent Cal Smith was incompetent, and that as Boring had
filed an employment application elsewhere, demonstrat-
ing that he was seeking to leave Respondent's employ-
ment anyway, Loughridge decided that he would help
persuade Boring to leave quickly by denying him a pay
increase. When Boring did not leave promptly, Esco
fired him. It is clear that Loughridge thought the pay in-
crease denial would spur Boring to depart, and Lough-
ridge said just that to Boring on the occasion of their
May 28 conversation.
As above noted, I find that the reasonable inferences
to be drawn from the evidence are equal. That being so,
the General Counsel has failed to establish a prima facie
case and the complaint, in the absence of a prima facie
case, must be dismissed.
In their briefs the General Counsel and Local 21 argue
that the prima facie case is shown by a review of all the
evidence in the record, including that adduced during
Respondent's case and during the rebuttal stage. They
contend that various adverse inferences can be drawn
from such factors as Baty's lack of credibility (based on
his admitted lie, as well as general demeanor), Lough-
ridge's failure to testify, that several of Respondent's rea-
sons advanced as the bases for Boring's discharge were
afterthoughts not contained in Baty's pretrial affidavit,
and other factors. These arguments, however, overlook
the fact that a respondent is not put to an election. Thus,
the Board has ruled, in effect, that a respondent, whose
motion to dismiss has been overruled, does not waive
which could be used as justification for discharging Boring. There is no
evidence to support this theory. Neither the General Counsel nor the
Charging Party, for example, showed that Stultz failed to interview other
employees or officials, or that he submitted no plans to Loughridge along
the lines of corporate structure and systems.
that motion by proceeding with its own case. Expressed
differently, in Hillside Bus Corp., 262 NLRB 1254 (1982),
the Board stated:
However, in assessing whether a prima facie case
has been presented, an administrative law judge
must view the General Counsel's evidence in isola-
tion, apart from the respondent's proffered defense.
It is only after the General Counsel's prima facie re-
quirement has been met that an administrative law
judge must consider the respondent's defense.
In Hillside the Board found that while the administra-
tive law judge erred in considering all the evidence in
determining whether the General Counsel has established
a prima facie case, the error was immaterial because the
General Counsel's evidence, standing alone, amounted to
a prima facie case. Although Board Member Jenkins dis-
sented as to part of the decision on the merits, he states,
in footnote 6 at 1256 in relevant part:
My colleagues . . . point out, correctly, that the
Administrative Law Judge must view the General
Counsel's evidence in isolation to determine wheth-
er a prima facie case has been shown before consid-
ering Respondent's proffered defenses.
D. Conclusion
In light of the foregoing, I conclude that the evidence
adduced by the General Counsel and the Charging
Party, as of the time they rested at the close of their
cases-in-chief, falls short of establishing a prima facie
case that Respondent discriminated against Roy Boring
in violation of Section 8(a)(4) and (1) of the Act. Ac-
cordingly, I shall dismiss the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local 21 is a labor organization within the meaning
of Section 2(5) of the Act.
3. The evidence adduced during the cases-in-chief of
the General Counsel and the Charging Party falls short
of establishing a prima facie case that Respondent violat-
ed Section 8(a)(4) and (1) of the Act as alleged.
On these findings of fact and conclusions of law and
on entire record, I issue the following recommended7
ORDER
The complaint is dismissed in its entirety.
t1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1268