General Electric Corporation

National Labor Relations Board - Board Decisions

Jun 19, 1981

256 N.L.R.B. 753 (N.L.R.B. 1981)

GENERAL ELECTRIC CORPORATION 753
General Electric Corporation, Installation & Service
Engineering Division and John E. Evans
J. P. Shirley Company and John E. Evans
General Electric Corporation, Installation & Service
Engineering Division and J. P. Shirley Compa-
ny and International Brotherhood of Electrical
Workers, Local 124. Cases 17-CA-9630, 17-
CA-9672, and 17-CA-9648
June 19, 1981
DECISION AND ORDER
On March 2, 1981, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: These
consolidated cases were heard before me on November 4
and 5, 1980,' at Kansas City, Kansas. In Cases 17-CA-
9630 and 17-CA-9672, it is alleged that Respondents,
acting as joint employers, discharged John E. Evans on
February 5 in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, 29 U.S.C.
§151, et seq.
In Case 17-CA-9648, it is alleged that, on May 2, Re-
spondents, acting as joint employers, terminated nine
members of the International Brotherhood of Electrical
Workers, Local No. 124, in violation of Section 8(a)(3)
of the Act.
While denying that they are joint employers, Respond-
ents admit that General Electric determined to lay off
the electricians on May 2 which decision was implement-
ed by J. P. Shirley Company. J. P. Shirley Company
admits full responsibility for the termination of Evans on
February 5.
Both Respondents contend that the layoff of the elec-
tricians and the termination of Evans were for cause and
All dates are in 1980 unless otherwise indicated.
256 NLRB No. 124
were in no way related to any employees' protected or
union activities.
Upon the record as a whole, including briefs and argu-
ments of counsel, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
General Electric Corporation, Installation & Service
Engineering Division (herein called General Electric), is
a New York corporation engaged, inter alia, in the man-
ufacture and installation of hydroelectric generators
throughout the United States, including the Truman
Dam project at Warsaw, Missouri. In the course and
conduct of its business, General Electric annually pur-
chases goods and services valued in excess of $50,000 di-
rectly from sources located outside the State of Missouri.
General Electric admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
J. P. Shirley Company is a California corporation en-
gaged, inter alia, in furnishing labor for construction of
hydroelectric power plants and on August 22, 1977, en-
tered into a "labor/services contract" with General Elec-
tric to "provide craft labor as requested to perform in-
stallation of 6 (six) hydro-generators" at the Truman
Dam project in Warsaw, Missouri. J. P. Shirley Compa-
ny annually sells more than $50,000 worth of services di-
rectly to customers located outside the State of Califor-
nia. J. P. Shirley Company admits, and I find, that it is
an employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The parties stipulated that J. P. Shirley Company has
a collective-bargaining agreement with the Central Mis-
souri District Council, United Brotherhood of Carpen-
ters and Joiners of America, Local 1792, covering the
millwrights hired for the Truman Dam project.
It appears that the principal function of J. P. Shirley
Company under its contract with General Electric is to
furnish labor for the performance of the work outlined in
the agreement, including the furnishing of onsite supervi-
sion and the providing of administrative services. In fact,
however, the evidence before me reveals that J. P. Shir-
ley Company did not provide onsite supervision. Rather,
Stan Kolodi was the site manager on the Truman Dam
project and was, according to his testimony, the General
Electric site representative. The evidence reveals that
with regard to personnel matters, such as the discharge
of Evans and the layoff of the electricians, Kolodi either
made the decision or the decision was made by higher
General Electric supervision transmitted to Kolodi, and
through him to the J. P. Shirley Company.
Since Kolodi made the decision to discharge Evans,
the responsibility for which was assumed by the J. P.
Shirley Company and since Kolodi by his testimony was
the General Electric representative on the project, it ap-
pears that the responsible direction of labor matters at
the Truman Dam project for both General Electric and
J. P. Shirley Company was common. I therefore con-
clude that for purposes of this matter the J. P. Shirley
Company and General Electric were joint employers of
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evans and the electricians. E.g., Sinclair & Valentine Co.,
Inc., a Division of Wheelabrator-Frye, Inc., 238 NLRB 754
(1978).
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that International Brother-
hood of Electrical Workers, Local 124 (herein called
IBEW), is a labor organization within the meaning of
Section 2(5) of the Act.
It is further admitted, and I find, that United Brother-
hood of Carpenters and Joiners of America, Local Union
No. 1792 (herein called the Carpenters), is a labor orga-
nization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
General Electric had a contract with the United States
Army Corps of Engineers to install six hydroelectric
generators for the Truman Dam project. In connection
with this work, as indicated above, General Electric con-
tracted with J. P. Shirley Company for labor. Principally
the work of General Electric required the services of
electricians (all of whom were members of IBEW), mill-
wrights (all of whom were members of Carpenters), pi-
pefitters, and laborers. According to the agreement be-
tween General Electric and J. P. Shirley Company, the
work was to be completed on "approximately September
30, 1979." However, the generator installation was not fi-
nally finished until August 14 or 15, 1980.
B. Analysis and Concluding Findings
1. The John E. Evans cases
John Evans was hired by Kolodi in the summer of
1978 to work as a millwright. Evans, as a member of a
sister local of the Carpenters, was a "permit man."
The events leading to Evans' discharge began on the
morning of February 4.2 While there is some disagree-
ment concerning certain material facts, infra, the parties
basically agree that on the morning of February 4 Evans
saw an employee identified as Frank Smith who had pre-
viously worked as an electrician and was now on the job
as a millwright (or vice versa, the record being unclear
on this point). Believing that Smith was a member of
both the Carpenters and IBEW, Evans went to Donald
Merk, his job steward (and vice president of the Carpen-
ters), protesting that there was a man working who had
two union cards.
According to Merk's generally credible testimony,
Evans came to him that morning and "asked me if I was
going to do anything about Frank Smith, who was a
millwright working on permit as an electrician. I told
him at that time that there was nothing I could do about
Frank Smith." After this conversation, according to
Evans, he went to Kolodi to ask why Smith was back.
Kolodi said he did not have time to explain the situation
2 Evans testified that sometime in the fall of 1979 he asked Kolodi why
new people were hired in favor of union members on temporary layoff.
There is no indication that this conversation had anything to do with
Evans' discharge.
and for Evans to go back to work. Kolodi denied that he
had any conversation with Evans on February 4.
In any event, around 9 a.m. Evans approached Mill-
wright Foreman Michael Montgomery (who was also
president of the Carpenters Union) and said "he had a
bur[r] in his saddle and he was going to leave the job."
Montgomery asked him if there were a problem and
Evans replied that there were some things bothering him
and he felt that he should get away. Montgomery told
Evans that, if he did not want to work, Montgomery
could not stop him.
Montgomery then sought out Kolodi and told him of
his conversation with Evans. He told Kolodi that Evans
had left and Kolodi asked why. Montgomery repeated
the conversation between him and Evans. Kolodi, ac-
cording to Montgomery, "seemed worried about the
manhours, the men, who to replace him [Evans] with."
They attempted to find Evans but could not.
That morning Evans was part of a four-man crew
which had been assigned to install a thrust bearing as
soon as a crane was free, which occurred around 10 a.m.
Because Evans had left, another man had to be assigned
to the crew.
Evans testified that he did not talk to Montgomery
until around noon. He testified:
I came back upstairs and I told him [Montgomery]
Kolodi had never come back down to the union
yet-I do not know if he is trying to avoid me over
the situation or not but I have been upset all morn-
ing and I have a cold, I am sick and if it is okay by
you I would like the rest of the day off. He said
yes.
There is a substantial conflict between the testimony of
Evans and Montgomery concerning precisely what
Evans said prior to leaving the job. I credit Montgom-
ery. First, Montgomery's demeanor was more positive
than Evans'. Secondly, even though Montgomery was a
working foreman (a job in the construction industry not
normally associated with management), it does not
appear that he had any stake in the outcome of this pro-
ceeding whereas Evans clearly did. Further, Montgo-
mery's version of this conversation is more consistent
with Evans' admission that he was upset and sought out
Kolodi with regard to what he conceived to be a viola-
tion of trade union principles (dual unionism).
John Maggart, the electrician foreman, testified in re-
buttal that he saw Evans at the project shortly before
lunch. Evans asked him to tell their carpool driver that
he would be gone the rest of the day. This is apparently
offered to corroborate Evans' testimony that he did not
leave the job until noon. It does not, however, for Evans
certainly could have walked off the job as testified to by
Montgomery, around 9:30 a.m., and still have been in the
area at noon.
On the afternoon of February 4, Kolodi told Mont-
gomery and Merk that he intended to discharge Evans
for walking off the job. Montgomery agreed and Merk,
representing the Carpenters as the job steward, told
Kolodi there was nothing he could do to protect Evans.
--- -----
GENERAL ELECTRIC CORPORATION 755
Evans came to work the next morning, and according
to his testimony sought out Kolodi "to see if he was
available to finish our conversation about the electrician
or millwright coming back-the guy carries two cards."
He met Kolodi and they had a conversation about Frank
Smith. Kolodi said he was not going to do anything
about the matter and, according to Evans, "I said, ac-
cording to my rules, you are not supposed to be carrying
two union cards." Evans went on to state that he also
talked to Kolodi about the number of apprentices on the
job:
. . .but I said that I did not approve of the guy
carrying two cards and asked him when he was
going to get something done about the apprentice
program. Anyway, we had that conversation and he
said that he had to do a job a certain way and said
he was going to do it like he had to do it and to
expedite it anyway he could. He then said for me to
go up and wait in the coffee shack and that he
would talk to me later.
During this conversation, according to Evans, Kolodi
said something to the effect that "if you are going to
make waves you know what I'm going to have to do," a
comment which Kolodi denied he made.
Sometime after this conversation with Kolodi, Evans
talked to Montgomery, who came in to work late,
having had a dental appointment that morning, and ac-
cording to Montgomery stated that he had made a mis-
take by leaving the job the day before. Evans denied he
made any such comment to Montgomery. Again, I credit
Montgomery's assertion over Evans' denial.
The General Counsel contends that, because other car-
penters had left the job in the past and had not been dis-
charged, and because Evans had permission from Mont-
gomery, Kolodi must have been motivated by Evans'
having protested about the dual card employee, the use
of apprentices, and the pay scale of millwrights. While
Kolodi did testify that during the exit interview with
Evans he agreed to "listen him out":
. . .he says that he felt that we were not doing the
right thing, that there was a man, a millwright, that
had two cards. The apprentices had, that we had
the apprentices work in which they should not be
working. They were doing millwrights work and
about the pay scale.
Evans did contact the Union subsequent to his dis-
charge and did protest matters relating to wages and
other conditions of employment of employees, and such
was investigated by an International representative.
However, it is clear, even from Evans' testimony, that
the object of his protest on February 4 was his belief
that an individual was working as a millwright who also
was a member of IBEW. And it was this fact that caused
Evans to have a "bur[r] under his saddle." And it was
this I find that caused Evans to determine to walk off the
job in protest on February 4. 1 do not believe that he
was sick nor do I believe that he had the permission of
his foreman to leave the job. It is clear that Evans left
the job to protest the employment of Frank Smith and it
is equally clear that Kolodi was determined to discharge
Evans for doing so.
Thus, the question becomes whether Evans' act was
protected concerted activity. I conclude that it was not.
First, there was no evidence that he acted in concert
with any other employee. He did seek out his union ste-
ward about this matter, but the steward declined to par-
ticipate. Thus it can hardly be said that he was acting on
behalf of fellow union members. Nor was any other em-
ployee involved with Evans. When Evans walked off the
job on February 4 he walked off by himself and was
acting on his own behalf and not on behalf of any other
employee. Second, it is clear that the object of his pro-
test was not the enforcement of the collective-bargaining
agreement, an act which can be concerted even though
engaged in by an individual. E.g., Farmers Union Cooper-
ative Marketing Ass'n., 145 NLRB I (1963).
Evans was concerned about the employment status of
an individual because of his membership in two unions.
The only reasonable interpretation of Evans' protest was
that he sought the termination of Frank Smith, because
Smith was a member of the IBEW even though he was
then working on the job as a millwright. Such clearly
was an attempt to cause discrimination against an em-
ployee because of his membership in a labor organiza-
tion. Had Kolodi, on behalf of either of Respondents, ac-
quiesced in Evans' implicit demand, he would have vio-
lated Section 8(a)(3) of the Act. The object of Evans'
protest was clearly not protected by Section 7. Cf.
Brady-Hamilton Stevedore Company, 198 NLRB 147
(1972).
While there may have been some discussion, both in
the fall of 1979, even on February 5 concerning the
matter of apprentices, the object of Evans' protest was
that of the millwright who was also a member of the
IBEW. I do not believe that Evans walked off the job to
protest the other matters which he brought up in testi-
mony or which he complained of to the Union following
his discharge.
I therefore conclude that, in discharging Evans for
walking off the job, Kolodi did not interfere with his or
other employees' rights guaranteed them by Section 7 of
the Act, nor did he discriminate against Evans because
he was a member of the Carpenters. Accordingly, I con-
clude that the General Counsel has failed to establish by
a preponderance of the credible evidence that Evans was
discharged in violation of Section 8(a)(1) or (3) of the
Act. I will recommend that the complaint in Cases 17-
CA-9630 and 17-CA-9672 be dismissed in its entirety.
II. THE IBEW CASE
In October 1979 there were five electricians on the
project. The number then increased to six in late Octo-
ber, to seven in February 1980, and then by late April
there were nine electricians with the inclusion of two
who were hired specifically to work only 80 hours.3 On
3 Apparently under the IBEW hiring hall, an employee does not lose
his place on he out-of-work list where he accepts a job which lasts for
80 or fewer hours.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 2 all of the electricians were laid off. On May 8
three were recalled to report to work on May 12 and an-
other two were hired in June. The complement of elec-
tricians was from four to six until the installation of the
generators was completed in August.
During the times material, John Maggart was an elec-
trician foreman and Beasmore Lamm, who began work-
ing in January, was the IBEW job steward.
On April 30, Kolodi called together all of the employ-
ees on the project. During the course of his talk, he
praised the pipefitters and millwrights but mentioned that
they had gone through several electrician foremen. He
then discussed the problem they were having with parts
and parts identification (an inventory had just been com-
pleted). While on this subject, in effect, Kolodi accused
Lamm of pilfering.
According to Lamm, this accusation by Kolodi was
both untrue and embarrassing. Thus, he contacted his
business agent, Chester Combs, who came to the project
the next day (May 1). Combs and Lamm met with
Kolodi about this. Combs demanded that Kolodi hold
another meeting among employees at which time he
should make a public apology to Lamm. Kolodi agreed
to do so.
Following this meeting with Combs and Lamm,
Kolodi called Denver Aleshire, his superior in Atlanta.
Aleshire testified he asked Kolodi if he had in fact ac-
cused Lamm of stealing. Kolodi said no but he did use
Lamm as an example and Aleshire told him that such
was "bad." Aleshire then advised Kolodi that he ought
to go back to the site, call a meeting of all the employ-
ees, and state what he had in mind-that he had not in
fact accused Lamm of stealing.
Combs testified that he waited around most of the day
for Kolodi to reassemble the employees but left around 4
p.m. Shortly thereafter, Kolodi, who apparently had
gone to his home to call Aleshire, returned and did in
fact call together all the employees and did apologize to
Lamm.
On May 2, according to Maggart, about 3:20 p.m.
Kolodi gave him paychecks for all of the employees, said
that there was no more material, that the payroll was
running about $35,000 a week, and they had to cut some
place. At this time, all of the electricians were given ter-
mination slips which stated "reduction in force."
Maggart further testified that, as of May 2, there were
in fact sufficient parts and material available at the pro-
ject to keep a crew of electricians busy for at least 5
weeks and, while some additional material had come in
during the week he was on layoff (Maggart being one of
the three recalled effective May 12), there was in fact
work available for electricians. Work which was done
subsequently could have been done during the period
when no electricians were employed.
The General Counsel contends that the reasons given
by Respondent for laying off the electricians on May 2,
and specifically those testified to by Aleshire (the Gener-
al Electric official who made the decision to effect the
layoff), are pretextual. Thus it can and should be inferred
that the true reason for the layoff on May 2 "was the
conversation between the IBEW business agent and the
electrician's union steward on May 1, and the demand
made therein."
While the timing is suspicious, such falls short, in my
judgment, of establishing a prima facie showing of a
causal connection between the concerted activity en-
gaged in by Lamm and the layoff.
Fundamentally, this is a motive case wherein the Gen-
eral Counsel alleges that General Electric was motivated
by Lamm's having engaged in protected concerted activ-
ity to terminate all the IBEW employees. The General
Counsel, however, has failed to show why Kolodi or
Aleshire specifically, or either Respondent in general,
would be so motivated. There is no showing why Gener-
al Electric would cease performing an important phase
of a multimillion dollar project because the union busi-
ness agent advised the project superintendent that he
should make a public apology to Lamm. (Incidentally, I
credit Aleshire's testimony that he also advised Kolodi to
make such an apology.)
Two of the most common occurrences in the construc-
tion industry are periodic layoffs of craft employees and
visits to the jobsite by a craft union's business agent to
discuss grievances with the job superintendent. The fact
that a layoff follows in time a business agent's visit, even
by I day, does not prove a causal connection between
them.
Lamm testified that there had already been rumors of
a layoff. In fact, he took the rumors so seriously that he
sought confirmation from his source with the Corps of
Engineers. Further, in late April some, but not all, of the
employees in the other two crafts were laid off.
Finally, there is the testimony of Aleshire, whom I
found to be a credible witness. He testified that follow-
ing a report from Kolodi concerning the job status and
parts inventory he was having difficulty determining
how to proceed with the job. He testified that in the
week prior to the layoff he could not decide whether he
should lay off the entire crew of electricians, keep three,
or what. There followed a phone conversation and later
a meeting with Combs wherein Aleshire assured him that
IBEW members would do the remaining electrical work,
and they did. Within a week three electricians were re-
called, and then two more.
The fact that the project was completed with fewer
than the total complement of the electricians as of May 2
indicates that there was less work available for electri-
cians than the General Counsel contends. In any case,
from the totality of the testimony, I cannot conclude that
the layoff on May 2 of all electricians was pretextual.
It is possible that the determination to lay off the
entire crew rather than part of it was made by Kolodi
after Aleshire had instructed him to lay off some electri-
cians and was done so in an attempt to get rid of Lamm.
However, a finding of such would be mere speculation
on the state of the record here. There is no indication,
for instance, why, if Kolodi had wanted to discriminate
against Lamm, he would have undertaken to lay off the
entire crew. Lamm was the job steward and in some col-
lective-bargaining agreements job stewards enjoy super-
seniority and are therefore the last to be laid off. But,
there is no indication that the electricians on this project
GENERAL ELECTRIC CORPORATION 757
were working under a collective-bargaining agreement
or, if they were, that such contract had a superseniority
clause.
Had Kolodi determined to retaliate because of Lamm's
having engaged in activity protected by the Act, it is just
as probable to conclude from the record here that he
would have laid off part of the electrician crew and in-
cluded Lamm rather than laying off the entire crew as
occurred.
Finally, there is just simply no demonstrated animus
against unions in general or IBEW in particular to sup-
port an inference that Kolodi or Aleshire would be moti-
vated to discriminate against employees because they en-
gaged in activity protected by the Act.
The only evidence upon which finding an unfair labor
practice can be made is the fact of a total layoff follow-
ing in time the jobsite visit by the IBEW business agent
and the discussion among him, Lamm, and Kolodi. Such
I conclude is insufficient to establish prima facie discrimi-
natory motive. Further, the totality of the generally
credited testimony of Respondents' witnesses is that the
layoff was the result of business considerations. Cf.
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980). 1 accordingly conclude that the allegations
in Case 17-CA-9648 have not been established by the
preponderance of the credible evidence.
Upon the foregoing findings of fact, conclusions of
law, the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER4
The complaints are dismissed in their entirety.
' In the event no exceptions are filed as provided by Sec 1024h6 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations. be adopted by the Board and
hecome its findings. conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes