Grove Roofing

National Labor Relations Board - Board Decisions

Mar 23, 1992

306 N.L.R.B. 742 (N.L.R.B. 1992)

742
306 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Respondent have excepted to some
of the judge’s credibility 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.
We grant the exception of the General Counsel requesting that the
judge’s reference to an ‘‘unproved’’ pension and medical plan be
corrected to read ‘‘improved.’’
2 This letter is not alleged to be a violation of the Act. 3 Citing Gates Rubber Co., 182 NLRB 95 (1970).
Grove Roofing, Inc., and DiPietro Construction,
Inc. and George Mahon. Case 4–CA–18929
March 23, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On June 18, 1991, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed cross-exceptions and a sup-
porting brief. The General Counsel also filed a brief in
response to the Respondent’s exceptions and the Re-
spondent filed a brief in response to the General Coun-
sel’s cross-exceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act by unlawfully promising im-
proved benefits to its employees in return for voting
against the Union, and the Respondent has excepted to
that finding. We disagree with the judge.
The Respondent’s president, Bradney, having sum-
moned employees to a meeting to introduce a new
pension and medical benefits package, was chagrined
to find that the insurance company representatives pre-
senting the plan were unprepared and that they were
unable to answer the employees’ questions. Taking the
meeting over from the representatives, Bradney ex-
pressed his disappointment with the presentation, and
asked his employees to give him a chance to make a
better presentation to them. The dissatisfied employees,
however, contacted a union and arranged for a meeting
to be held about a week later. Bradney, upon learning
of the meeting, immediately contacted his lawyer for
advice, and on the morning of the union meeting, dis-
seminated a letter to the employees expressing his op-
position to unionization and urging them inter alia to
‘‘think carefully’’ before signing anything.2 As
Bradney distributed the letters to a group of employees
at one jobsite, he reiterated that he was dissatisfied
with the December 27 benefits presentation and asked
them to give him a chance to put a good package to-
gether for them.
The judge, while noting the principle that an em-
ployer has a legal duty to proceed as it would have
had there been no union activity,3 nevertheless con-
cluded that the Respondent violated Section 8(a)(1) by
unlawfully promising its employees improved benefits
in return for voting against the Union. He reasoned
that Bradney was not merely proceeding the way he
would have had there been no union in the picture, as
evidenced by his haste in contacting his attorneys
when faced with the possibility of unionization and in
disseminating a letter expressing his opposition to
unionization. He further found:
Absent a showing that similar letters or meetings
would have been held solely for the purpose of
addressing employee dissatisfaction with the pro-
posed benefit plan, I conclude, as Bradney states,
that the letter and the meeting at issue were de-
signed as responses to employee union activity. In
that context, Bradney’s admitted request that the
employees, ‘‘[G]ive me a chance and I will put
a good package together for us,’’ reasonably con-
veyed the message that if the employees held off
on their quest for union representation, Bradney
would deliver a benefit package they would ac-
cept.
We disagree with the judge’s conclusion that the
Respondent made an unlawful promise of benefit to its
employees in return for voting against union represen-
tation. There is nothing unlawful in an employer’s con-
tacting counsel for advice in response to its employees’
union activities, whether or not done in haste. The let-
ter Bradney disseminated was not alleged to violate
Section 8(a)(1), so we are left with Bradney’s state-
ment to the employees at the jobsite, ‘‘give me a
chance and I will put a good package together for us.’’
We find that this statement is nothing more than a reit-
eration of the message he gave them at the close of
the benefits meeting, when it appeared to everyone in-
volved that the presentation of the package was wholly
unsatisfactory. Bradney’s statement to his employees at
that meeting—that he would be back to give them a
better presentation—was not unlawful. His statement to
the employees a week later, after the Union entered the
picture, was simply a restatement of the same idea. We
cannot conclude that the additional factor of the Union
somehow made Bradney’s statement unlawful, when it
appears that he was simply reminding the employees
of a course of action that the Respondent had decided
743GROVE ROOFING
4 See Kenrich Petrochemicals, 294 NLRB 519, 523 (1989) (having
formulated and announced a plan prior to the advent of the union,
to grant a 7-percent wage increase when sales reached $1.2 million
per month, the respondent did not make an unlawful promise of ben-
efit in violation of Sec. 8(a)(1) when it referred to this plan during
the union organizing period; it was simply reaffirming and remind-
ing its employees of its previously announced plans). See also Car-
tridge Actuated Devices, 282 NLRB 426, 427–428 (1986). Cf.
Maremont Corp., 294 NLRB 11, 38 (1989).
to take and had set in motion before the advent of the
Union.4
Even if Bradney’s letter and meeting with employ-
ees at the jobsite were ‘‘designed as responses to em-
ployee union activity,’’ as found by the judge, they are
within what the law permits and, as such, they cannot
be allowed to bootstrap into an 8(a)(1) violation a
statement that merely reflects a continuation of a
course of action that predated the employees’ effort to
secure union representation. Nothing in Bradney’s
statement can be construed as conditioning his contin-
ued effort to develop a pension and health care pack-
age on the employees’ abandonment of their support
for the Union. Accordingly, we reverse the judge’s
finding of an 8(a)(1) violation.
2. We agree with the judge that the Respondent vio-
lated Section 8(a)(3) and (1) by failing to reinstate or
offer to reinstate Marc Stasen, Michael E. Mahon,
Thomas McKeown, and William D. Ballentine prior to
August 1990, but we do not agree that backpay should
run from the date of the layoff because there was no
finding of an unlawful layoff. Accordingly, we shall
modify the remedy and Order to reflect that backpay
shall commence at the point a successor crew took
over the project following the winter weather hiatus.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3 and renumber the re-
maining paragraphs.
AMENDED REMEDY
The Respondent shall make whole Marc Stasen, Mi-
chael E. Mahon, Thomas McKeown, and William D.
Ballantine for any loss of earnings suffered during the
period beginning in March 1990, when the crew head-
ed by Jimmy Kalinoski arrived at the Chichester Junior
High School jobsite to complete the roofing work
there, and ending on August 13, 1990. Backpay shall
be computed in the manner prescribed by the judge in
the remedy section of his decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Grove
Roofing, Inc., and DiPietro Construction, Inc., Ivyland,
Pennsylvania, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraph 1(a) and reletter the remaining
paragraphs.
2. Substitute the following for paragraph 2(a).
‘‘(a) Make Marc Stasen, Michael Mahon, Thomas
McKeown, and William D. Ballantine whole for any
loss of earnings and other benefits between the date in
March 1990, when the crew headed by Jimmy
Kalinoski arrived at the Chichester Junior High School
jobsite to complete the roofing work there, and August
13, 1990, as a result of the discrimination against
them, in the manner set forth in the remedy section of
the judge’s decision, as amended.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to reinstate employees
because they join unions or otherwise engage in union
activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Marc Stasen, Michael Mahon,
Thomas McKeown, and William Ballantine whole for
any loss of earnings or other benefits resulting from
our failure and refusal to reinstate them, plus interest,
and WE WILL remove from our files any reference to
our failure and refusal to reinstate these employees,
and notify them in writing that this has been done and
that this failure to reinstate will not be used against
them in any way.
GROVE ROOFING, INC., AND DIPIETRO
CONSTRUCTION, INC.
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Certain errors in the transcript are noted and corrected.
2 Respondent was represented by a different law firm at trial be-
fore me.
Bruce G. Conley, Esq., for the General Counsel.
Douglas R. Sullenberqer, Esq. and Andrea L. Ryan, Esq., for
the Respondent.
DECISION
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Philadelphia, Pennsyl-
vania, on February 13 and 14, 1991, pursuant to charges
filed by George Mahon on May 21, 1990, and complaint
issued on July 31, 1990, alleging Grove Roofing, Inc. and
DiPietro Construction, Inc. (Respondent) violated Section
8(a)(3) and (1) of the National Labor Relations Act (the Act)
by discharging Marc Stasen, Michael E. Mahon, Thomas
McKeown, and William D. Ballantine, and making unlawful
threats and promises to its employees designed to dissuade
them from selecting United Union of Roofers, Waterproofers,
and Allied Workers Local 30, AFL–CIO (the Union) as their
collective-bargaining representative. Respondent denies the
commission of unfair labor practices.
On the entire record,1 and after considering the posttrial
briefs filed by the parties and the testimonial demeanor of
the witnesses appearing before me, I make the following
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
The parties stipulated that Grove Roofing and DiPietro
Construction (Respondent) are Pennsylvania corporations en-
gaged in the roofing business, are a single employer within
the meaning of the Act, and during the year preceding the
issuance of the complaint, in the course and conduct of Re-
spondent’s business operations, performed services valued in
excess of $50,000 directly for customers located outside the
Commonwealth of Pennsylvania. Respondent admits, and I
find, it is and has been at all times material to this pro-
ceeding an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the parties stipulated, and I find the
Union is and has been at all times material to this proceeding
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On December 22, 1989, William Bradney, the president
and owner of Grove Roofing, directed a memo to all em-
ployees requiring them to attend a December 27, 1989 meet-
ing at a restaurant. The purpose of the meeting was the pres-
entation of a proposed pension and medical benefits plan.
The presentation was conducted by two gentleman rep-
resenting an insurance company. Dissatisfied, as were other
employees, with the proposed plan and the explanation of it
given at the meeting, George Mahon called the offices of the
Union and arranged a meeting with Daniel Conway, a union
business agent. The parties agree and I find that George
Mahon was a roofing foreman and a statutory supervisor
within the meaning of the Act at all times material to this
case. Within a day or two thereafter, Conway met with
Mahon who told him there were several employees interested
in joining the Union. Conway then set up a meeting at the
union hall for the night of January 4, 1990, advised of this
scheduled meeting by his son who had been told of it by
George Mahon, William Bradney contacted labor counsel
who drafted a letter for Bradney to distribute to employees,
and advised him not to belittle the Union and not to threaten
employees or make them any promises.
On January 4, at about 6 a.m., William Bradney conducted
a meeting with supervisors, including George Mahon.
Bradney presented them with the following letter drafted by
Respondent’s attorneys:2
TO: All Employees
FROM: Bill Bradney
Some of you have told us that Roofers Local 30 is
interested in having our employees join their union. The
union may be asking you to sign union ‘‘authorization
cards,’’ stating that you want Local 30 as your bar-
gaining agent. I strongly urge you not to sign the cards,
since I think that, after you learn the facts, you will
agree that you do not need or want Local 30 to rep-
resent you.
You do not have to sign a card. Please read and
think carefully about what you are signing before you
sign anything.
Local 30 probably will tell you that the purpose of
the card is only to obtain an election before the Na-
tionaL Labor Relations Board. Please read the fine print
on the card. Typically, such cards directly authorize the
union to represent you for purposes of collective bar-
gaining. Are you ready to have this union represent
you?
The card could also be an application for union
membership. In that case, you could commit yourself to
pay union dues beginning on the date you sign the card.
Signing the card could be like signing a blank check.
By signing a card, you may be committing yourself to
union representation. THINK CAREFULLY BEFORE
YOU DO THAT. Is that what you really want?
I know some of you are upset about the benefits
meeting we had the other day. I was upset too. I don’t
think the presentation was clear. I do think that the pro-
gram, once the bugs are cleared up, will be a good one
for each of you and the Company. We’ll be talking to
you more about it. In the meantime, do not make any
hasty decisions.
Unions may promise the moon and the stars, but
cannot deliver. A union cannot force a Company to
agree to any contract provision or wages or benefits
that the Company is not willing to agree to or is unable
to meet. The Union cannot increase wages or benefits
unless the Company feels it is in its best interest to do
this. A Company has no legal obligation to agree to any
Union demand. Everything employees get would have
to be negotiated. The Company would not agree to any-
thing that is not in its best interest.
I do not think a union is right for our employees or
our Company. I have provided good, steady employ-
745GROVE ROOFING
3 Bradney’s brother took the letter to other jobsites.
ment. The future looks good. I want to work with you
to continue to build toward our bright future.
If you have any questions about the cards or any-
thing else, ask me. If I do not know the answers, I will
get them.
After talking to the supervisors, William Bradney visited
three jobsites that morning and distributed copies of the
above letter to employees.3 One of the three was the
Chichester Junior High School job where George Mahon’s
crew was working. There Bradley distributed the letter to the
employees assembled, and met with them for a half an hour
or so. There is general agreement among the witnesses to
this meeting, and I conclude, that Bradney told the employ-
ees that he was not satisfied with the December 27 presen-
tation, and was trying to assemble a pension and medical
plan satisfactory to the employees. That unanimity does not
exist with respect to what Bradney may have said concerning
the union. The complaint alleges that he threatened to close
the business and threatened a loss of benefits if the employ-
ees selected the Union to represent them. The testimony
proffered in support of these threat allegations is given by
employees Marc Stasen, Michael Mahon, William Ballantine,
and Thomas McKeown, the subjects of the unlawful dis-
charge allegations in the complaint.
Stasen testified on direct examination that Bradney said he
had heard of the upcoming union meeting, could not compete
if he had to go union, and would not allow the employees
to go union. On cross-examination, he testified as follows:
Q. Okay. You said that during this conversation, he
told you that he wouldn’t allow you—or allow the
union in; is that correct?
A.That’s the way I took—it, yes.
Q. The way you took it; is that what he said?
A. I can’t say word for word, but it was—he could
not compete. It was that the company would not be
able to compete.
In a sworn statement given to a Board agent in June 1990,
Stasen said no one from the Bradney family other than Wil-
liam Bradney’s son ever said anything to him about the
Union. Stasen then explained that when he gave the affidavit
there was no discussion of anything other than telephone
conversations he had with Bradney Jr.
Michael Mahon first gave confused testimony that
Bradney said he was not going union no matter what and if
employees did not go with the Union they would not be em-
ployed there. He then amended this testimony to reflect that
Bradney said if the employees did not accept the new pack-
age they would no longer be employed. His pretrial affidavit
asserts that Bradney said anybody who did not go with his
insurance plan could not work. I am persuaded Michael
Mahon’s testimony lends little support to the allegations of
the complaint that Bradney made threats of closure and/or
loss of benefits if employees selected the Union. Moreover,
all of Michael Mahon’s testimony concerning the events of
January 4, 1990, is questionable because the Company’s
records reflect no wages for him during that week, and his
conjecture that he might have been paid with cash under the
table that week so he could collect unemployment benefits,
but he doesn’t quite remember that such a transaction took
place, simply is not believable.
William Ballantine testified that Bradney said he did not
want the Union in his company, and would not be able to
function if the Union was in. Ballantine’s affidavit of June
11, 1990, relates that Bradney said he did not want the
Union, and the employees would be better off without it.
Thomas McKeown, who concedes he was not paying
much attention and was not listening all the time, testified,
both on direct and cross-examination, that Bradney advised
he was not going union and would have to close the Com-
pany in the event employees selected the Union. On cross-
examination, McKeown reports that Bradney said ‘‘The
union would take all our benefits.’’ The General Counsel
contends this was a threat of loss of benefits violative of the
Act. I disagree. Assuming McKeown, not a particularly im-
pressive witness, is correct, Bradney’s statement was a pre-
diction, perhaps a misrepresentation, not within Respondent’s
power to carry out, and not a violation of the Act. Tappan
Co., 228 NLRB 1389, 1390 (1977), on which the General
Counsel relies as support for his contention the statement re-
ported by McKeown was a threat of loss of benefits, held it
was a violation of Section 8(a)(1) to give employees the co-
ercive and threatening impression they would automatically
lose coverage of the existing retirement savings plan. No
such impression is conveyed by Bradney’s statement of opin-
ion nor can it be construed as a threat the Employer would
do anything to adversely affect existing benefits.
George Mahon, the Charging Party, only heard Bradney
voice his displeasure with the December 27 meeting and
state he was trying to work something out with respect to the
medical and pension plans. George Mahon then left the scene
to attend lo other duties.
John Modres just has a general recollection of what
Bradney said, does not recall any statements concerning the
Union, and does not think Bradney said anything like he
would shut down if the Union got in.
Theodore Kalinoski recalls Bradney saying he would not
be able to compete if he had a union shop. Kalinoski further
recalls employee Dave Suda saying the Union was no good
for the employees, and Bradney then saying, ‘‘Listen to
Dave, he will tell you.’’ At this point, says Kalinoski, he left
to attend to other duties.
According to William Bradney, he called the employees
together, passed out the letter, told them to read it, and go
to the union meeting to see what was going to happen. He
relates that he then told the employees he knew the Decem-
ber 27 presentation was not good, and asked them to give
him a chance to put a good package together. There were
many questions from employees concerning the proposed
content of the package, and Bradney recalls saying he had
to have the package put together so he could stay in a com-
petitive bid market. He recalls no questions concerning the
Union, and says he did not tell employees he would shut the
Company down if the Union got in.
Keeping in mind the fact that George Mahon, William
Bradney, and the four alleged discriminatees are patently not
disinterested witnesses, and the consideration that (1) the em-
ployees assembled had just read or were reading the letter
distributed to them when Bradney entertained their questions;
(2) the Letter was prepared and the meetings held in reaction
to the information received by Respondent that there was
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See, e.g., Gates Rubber Co., 182 NLRB 95 (1970).
5 NLRB v. Gissel Packing Co., 395 U.S. 575, 618–619 (1969).
6 Harrison Steel Castings Co., 293 NLRB 1158 (1989).
about to be a union meeting; (3) the obvious possibility em-
ployees confused what they read with what Bradney said; (4)
the not uncommon case that people will testify to what they
believe to be the meaning of written or spoken words rather
than the exact wording of the communication; and (5) the
passage of more than a year between the events complained
of and the hearing before me, I have arrived at the following
conclusions concerning the content of the January 4 meeting.
As previously noted, I find that William Bradney did tell the
employees, consistent with his letter, that inasmuch as he and
they were not satisfied with the December 27 presentation he
was trying to assemble a more acceptable benefits plan. It
has long been settled that an employer has a legal duty to
proceed as he would have done had there been no union ac-
tivity.4 If, therefore, Respondent was merely proceeding as it
would have in the absence of a union, Bradney’s statement
did not violate the Act, and had Respondent adopted the pro-
gram so poorly explained it would have been lawful as a
continuation of a course of conduct decided upon and com-
menced prior to the appearance of the Union on the scene.
Moreover, if Bradney had merely advised employees that
program would be adopted his conduct would have been
lawful, but the circumstances present require a closer exam-
ination of that which might on its face appear permissible
under the Act. There is no evidence the letter or the meetings
would have existed had Respondent not been told of the
union meeting. William Bradney’s testimony establishes he
‘‘immediately’’ consulted labor lawyers because he had been
told on January 3 of the union meeting, and the letter and
the January 4 meetings were designed as responses to union
activity. The General Counsel does not allege in the com-
plaint, and specifically disavowed at trial, that the letter itself
violated the Act. I therefore make no finding that it does, but
the reasons for the letter and the meetings, as well as the
content of the letter, are circumstances which must be con-
sidered in determining the lawfulness of Bradney’s state-
ments on January 4. Absent a showing similar letters or
meetings would have been held solely for the purpose of ad-
dressing employee dissatisfaction with the proposed benefit
plan, I conclude, as Bradney states, the letter and the meeting
at issue were designed as responses to employee union activ-
ity. In that context, Bradney’s admitted request that the em-
ployees, ‘‘[Give me a chance and I will put a good package
together for us,’’ reasonably conveyed the message that if the
employees held off on their quest for union representation
Bradney would deliver a benefit package they would accept.
It is a close question, but I find this amounts to a promise
of benefit if employees ceased or delayed their union activ-
ity, and therefore reasonably tended to interfere with employ-
ees in the exercise of the rights guaranteed them in Section
7 of the Act and therefore violated Section 8(a)(1) of the
Act.
Given Bradney’s admitted opposition to the Union, as well
as the January 4 letter expressing that opposition, I am per-
suaded William Ballantine’s assertion that Bradney said he
did not want the Union in should be credited, noting also this
testimony is consistent with Ballantine’s June 11, 1990 affi-
davit and therefore not of recent invention. It is difficult
however to square Ballantine’s trial testimony that Bradney
said the Company would not be able to function if the Union
was in with his sworn affidavit statement, made within 5
months of the event rather than 13 months as is the case of
his trial testimony, that Bradney said the employees would
be better off without the Union, but the two statements are
not mutually exclusive. Noting that Bradney says he told the
employees on January 4 that he had to have the health and
pension package to stay competitive, Bradney’s testimony
that the presence of a union would make it more difficult for
him to compete, and Kalinoski’s recollection, which I credit,
that Bradney said he would not be able to compete if he had
a union shop, I conclude that Ballantine was reciting before
me his interpretation of what Bradney said concerning the ef-
fect of a union on competitiveness, but that Kalinoski’s
version, which draws some support from Stasen’s rather re-
luctant recollection that Bradney said the Company would
not be able to compete, is the more accurate. The Supreme
Court pointed out in Gissel5 that when an employer makes
a prediction concerning the adverse impact on its business by
unionization that prediction ‘‘must be carefully phrased on
the basis of objective fact to convey an employer’s belief as
to demonstrably probable consequences beyond his control,’’
and conveyance of this belief, even if it be sincere, is not
a statement of fact unless those consequences are capable of
proof. Here, there is no evidence proffered, other than
Bradney’s ipse dixit, that unionization would destroy or even
impair Respondent’s competitiveness. The Board has found
that a prediction that unionization could cause lack of com-
petitiveness leading to a loss of business and jobs, viewed
against a background of extensive unfair labor practices in-
cluding threats and discrimination against union supporters,
violates the Act.6 In this case, Bradney did not go beyond
predicting a lack of competitiveness to add a prediction of
loss of business or jobs, and I do not believe the simulta-
neous promise which I have found violative of the Act cre-
ated a sufficient environment of antiunion hostility to warrant
finding Bradney’s prediction of on-competitiveness to be un-
lawful. I am persuaded the issue before me is answered by
Tri-Cast, 274 NLRB 377 (1985), which in the Board held
that an employer’s statements it could not remain healthy
with union restrictions because they would decrease its flexi-
bility and competitiveness were moderate comments on pos-
sible consequences of unionization and campaign comments
containing no unlawful threats. I conclude Bradney’s remarks
concerning competitiveness did not exceed those found law-
ful in Tri-Cast, and therefore did not violate the Act.
Some 46 employees attended the January 4 union meeting
at 6:30 p.m. Of these, 29 signed union authorization cards.
Ten of the twenty-nine signers were members of George
Mahon’s crew. George Mahon also signed. Premeeting con-
tacts with employees soliciting them to attend were con-
ducted by George Mahon and Marc Stasen who divided Re-
spondent’s employee list for this purpose. During the course
of these contacts George Mahon advised General Foreman
Robert Bradney of what was going on, and Stasen invited
William Bradney Jr., the son of William Bradney, Respond-
ent’s president, to the meeting.
The roofing work at the Chichester Junior High School
commenced in May 20, 1989, with a projected completion
date of December 1989. George Mahon’s crew was assigned
747GROVE ROOFING
7 Respondent’s brief concedes Bradney indicated to Mahon’s crew
they would be called back in the spring.
8 As an example of the sometimes unreliable character of his testi-
mony, George Mahon’s testimony that he did not know whether he
had talked to Russell Egger, Respondent’s project manager, about
the witnesses who would be appearing for the Company at the hear-
ing is simply not believable. There is no evidence Mahon did in fact
have such a conversation, but that he would not know whether he
had indicates that he has an extremely poor memory or he was not
entirely candid as a witness. Either alternative reflects on his credi-
bility.
to do the work. The owner of the premises is the Chichester
Board of Education. The project manager was Robert
Zmijewski, director of operations for ARMM Designs, Incor-
porated, who contracted the roofing work to Respondent.
Zmijewski has no apparent interest in the outcome of this
proceeding, was a confident and believable witness, and is
credited. Zmijewski testified he visited the jobsite 12 or 15
times in 1989 because he had received complaints from the
board of education concerning delays in the work, foul lan-
guage on the job, debris at the site, and other matters. He
also spoke on several occasions concerning roof leaks and
delay in completion of the contract. The leaks caused consid-
erable damage to the school interior and furnishings.
Zmijewski said the leaks were the result of failure to prop-
erly complete detail work, i.e., metal flashings which are an
integral part of roofing work.
On January 8, William Bradney went to the Chichester
jobsite. It was an overcast day with, according to climato-
logical data published by the National Climatic Data Center,
Department of Commerce, temperatures ranging from 28 de-
grees Fahrenheit to 38 degrees, averaging 33 degrees, and
fog, smoke or haze, and ice pellets. William Ballantine con-
firms there were light snow flurries, and Theodore Kalinoski
recalls it was drizzling. The witnesses generally agree it was
not good weather for roofing. George Mahon’s crew was
loading materials on the roof by hand preparatory to the next
day’s work when William Bradney arrived. According to
Bradney it was overcast with intermittent showers, altogether
a very bad day for roofing, and he went to the Chichester
job to see why there was work in progress at that location.
I conclude, from his testimony that he went to the job as
soon as he found there was work in progress there, that the
testimony of George Mahon, Thomas McKeown, and Mi-
chael Mahon to the effect he came in the morning is correct
and there is no reason to seriously question George Mahon’s
estimate of 8:30 a.m.
Bradney testified that he became angry when he found
men taking material from the ground to the roof by hand
rather than getting the company crane to do the job, and he
then called George Mahon aside and told him he had no
business working there that day, was only trying to drag the
job out, and was hurting the Company working on days like
that, and Bradney was shutting the job down. Bradney denies
making any mention of the Union. George Mahon recalls
Bradney asking him what he was doing on the job, and say-
ing the crew should not be out there on a bad day. Mahon
says he responded that they were loading material for the
next day, to which Bradney replied by taking him aside and
stating Mahon was calling the Union and was personally try-
ing to ruin the Company and bring it to its knees. According
to Mahon, he denied this was true, and said he was only in-
terested in his welfare and that of his men, to which Bradney
repeated he only saw Mahon was trying to ruin the Com-
pany. Shortly thereafter, Bradney announced he was shutting
the job down, and would call the employees back to work
as needed.7 No employees other than George Mahon testify
to the statements concerning the Union attributed to Bradney
by Mahon. This is not a determining factor because Bradney
took Mahon aside and talked to him privately. Mahon’s pre-
trial affidavit given to a Board agent on June 11, 1990, says
that Bradney took him aside and said Mahon was personally
trying to bring the Company to its knees and was trying to
destroy the Company, but said nothing else. According to
Mahon, he did not include Bradney’s comments about the
Union in his affidavit because he ‘‘just didn’t think of it at
the time.’’ Mahon filed the charge in this case on May 21,
1990, alleging he and the four alleged discriminatees were
laid off and refused recall in order to discourage union mem-
bership. It is difficult to believe that in the course of giving
a sworn statement in support of that charge that he ‘‘just
didn’t think of’’ Bradney’s statements concerning the Union
on January 8, but now vividly recalls them. Although
Bradney and George Mahon were in a one-on-one discus-
sion, part of that discussion was overheard by Theodore
Kalinoski and William Ballantine. Kalinoski states he heard
Bradney tell George Mahon that Mahon was bringing the
Company to its knees. Ballantine recollects hearing Bradney
referred to the men’s presence on the job as a waste of his
time and money. I do not credit George Mahon, who was not
always a particularly convincing witness,8 that Bradney stat-
ed Mahon was calling the Union. Ballantine’s recollection
that Bradney referred to a waste of his time and money tends
to support Bradney’s claim he was angered that the men
were working in inclement weather. I conclude that Bradney
did say the things to which he testified, but I further con-
clude on consideration of the testimony of Kalinoski and
Mahon, and the pretrial affidavit of Mahon to the same effect
which shows this testimony of Mahon is not of recent inven-
tion, that Bradney also accused Mahon of trying to bring the
Company to its knees. There is nothing in the record other
than Mahon’s union activity which might have provoked
Bradney to believe Mahon had embarked on a campaign to
bring financial disaster to Respondent. It is true that, as more
fully described later in this decision, the performance of
Mahon and his crew on the Chichester Junior High School
job had been the subject of complaints and had contributed
to a failure to timely complete the project, but there is no
persuasive evidence this performance which Respondent con-
sidered to be considerably less than satisfactory work per-
formance was the result of a deliberate scheme engineered
and orchestrated by George Mahon. In the absence of any
convincing reason shown for Bradney’s accusation to Mahon
that he was trying to bring the Company to its knees, I con-
clude Bradney was referring to Mahon’s leadership in the
union effort.
Marc Stasen, George and Michael Mahon, Stephen
Fetscher, Theodore Kalinoski, William Ballantine, Thomas
McKeown, John Modres, and David Suda were on the
Chichester job during the week ending January 14, 1990. All
but Suda were laid off on January 9. Suda continued to work
at that jobsite continuously through June 1990 at the earliest.
During the week ending January 21, Suda worked alone on
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 I have credited Egger’s account which is corroborated by Mahon
in most particulars. Where they differ, Egger is credited.
10 With respect to Kalinoski, it must be kept in mind that he was
recalled to work after he made a statement implying he would ad-
here to William Bradney’s views.
11 The fact that George Mahon now downplays the degree of his
enthusiasm for union representation does not obscure the simple fact
he publicly appeared to be an ardent unionist at the time of the al-
leged unfair labor practices.
12 Pinkerton’s Inc., 295 NLRB 538 (1989).
that job for 5-1/2 hours. He was joined by Van Dusen during
the weeks ending January 28 and February 4. They in turn
were joined by Donald Miller the week ending February 11.
The work force on the Chichester jobsite then swelled to six
the weeks ending February 18 and 25, and March 4 and 11,
dropped to five the week ending March 18, and raised to
seven the week ending March 25. During these periods the
total hours worked by all employees on the job were, in con-
secutive order: 21.50, 65.5, 80.5, 105, 78, 153, 77.5, and
97.5. Thereafter, commencing the week ending April 1 when
15 employees worked a total of 464.5 hours on the
Chichester job, it appears Respondent resumed full-time
work on the Chichester Junior High School job, as the
weather or other circumstances permitted, until the job’s
completion.
That Suda, who openly opposed the Union and who appar-
ently did not attend the union meeting or sign an authoriza-
tion card, lost little if any work, and the further circumstance
that Van Dusen, the next employed on the Chichester job,
apparently neither attended the union meeting or signed a
card is worth noting, but is somewhat diminished in pro-
bative value by the subsequent employment of Miller,
Modres, and Fetscher, all of whom attended and signed
cards.
John Modres and Stephen Fetscher were employed during
the payroll period January 24 and at various times thereafter.
Theodore Kalinoski was recalled to work during the payroll
period ending January 31, a couple of days after he told
Marie Bradney to tell William Bradney that Kalinoski
‘‘would like to stay with Bill.’’ Stasen, Michael Mahon,
McKeown, and Ballantine were not recalled until Respondent
issued a letter to each of them on August 3, 3 days after the
complaint issued in the instant case, offering them recall to
their former position effective August 13, 1990. The parties
agree that this offer tolls any backpay liability. None of the
four accepted recall.
George Mahon called Project Manager Russell Egger in
mid- or late January 1990, and asked if William Bradney
would bring him back in the spring. Egger asked Mahon to
meet with him and Robert and William Bradney the fol-
lowing morning to air all their problems and bring the whole
thing to a head. Mahon said he wouLd come in, but did not
do so.9
George Mahon and Marc Stasen were active and open so-
licitors of both employees and supervisors to attend the
union meeting, and this was known by Respondent. It is not
clear that Respondent was also aware of the degree of union
activity and support of McKeown, Michael Mahon, and
Ballantine. The Respondent did, however, have ample reason
to suspect these three were of like mind with Stasen and
George Mahon concerning the Union by virtue of their close
and publicly demonstrated relationship with George Mahon.
In the case of Michael Mahon, George’s brother, the relation-
ship was obvious. Add to this that Ballantine lived in George
Mahon’s home for 8 or 9 months, McKeown is George
Mahon’s best friend whom he has known for more than a
decade, and the further fact that George Mahon selected
these men for his crew and normally took his brother,
McKeown, Stasen, Ballantine, and Theodore Kalinoski to
work in George Mahon’s company provided vehicle, and it
is fair to conclude Respondent believed they were a closely
knit group.10 In the circumstances, I conclude Respondent
most likely believed these associates of George Mahon were,
like him, involved in the union activity in progress at the
time of the layoff or, at the least, shared his attitude which
then appeared to be prounion.11 Respondent denies any
knowledge of the union activities of the alleged
discriminatees, and asserts that William Bradney only had
general knowledge of employee union activity and had been
told by a few foremen of their attendance at the union meet-
ing. These unidentified foremen clearly knew who was
present at the meeting and what they did there. Respondent,
citing sections of the official record, relates in its posttrial
brief that ‘‘The foreman chooses a crew of approximately ten
to fifteen men and assumes responsibility for completion of
the job. With few exceptions, the foreman has complete con-
trol over the men who are assigned to work on his crew.’’
By so doing, Respondent concedes, consistent with its posi-
tion concerning the status of George Mahon, that all job
foremen possess sufficient independent authority over em-
ployees to establish they are supervisors within the meaning
of Section 2(11) of the Act. Knowledge of a supervisor is
properly attributable to his or her employer.12 This presump-
tion has not been rebutted by appropriate credible super-
visory testimony. For the foregoing reasons I conclude Re-
spondent knew who attended the union meeting and signed
union cards and had ample reason to believe Stasen,
Ballantine, Michael Mahon, and McKeown shared George
Mahon’s openly demonstrated interest in union representa-
tion.
With respect to antiunion feelings which Respondent de-
nies were a motivating factor in the layoff and failure to re-
call at issue, the haste with which Respondent moved to
meet with employees, present them letters conveying the
message that Respondent was opposed to unionization, and
offer to present an unproved pension and medical plan is
enough to show Respondent did not favor union activity by
its employees, and his statement to George Mahon that
Mahon was attempting to bring Respondent to its knees,
which I find was a reference to Mahon’s union activities, be-
trays the depth of Respondent’s antagonism toward union
representation. Put these factors together with the retention of
Suda who was openly antiunion, the recall of Fetscher and
Modres who do not appear to have been close associates of
George Mahon, the rapid recall of Theodore Kalinoski within
a couple of days of his message to Respondent that he
‘‘would like to stay with Bill,’’ thereby not too subtly con-
veying a willingness to support company positions, and the
failure to recall the alleged discriminatees, as promised on
January 8 until August 1990 after the complaint in this case
issued, and this evidence and the evidence of knowledge is
enough to infer the employees’ protected union activity was
a motivating factor in Respondent’s decision to lay off and
749GROVE ROOFING
13 See, e.g., Heath International, Inc., 196 NLRB 318 (1972);
Irwin County Electric Membership Cooperative, 247 NLRB 1357,
1363 (1980); and Birch Run Welding & Fabricating v. NLRB, 761
F.2d 1175, 1179 (6th Cir. 1985), concerning the propriety of finding
discriminatory motive through circumstantial evidence.
14 Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
refuse to recall these employees.13 Respondent, in order to
prevail, is therefore required to come forward with proof the
layoff and failure to recall would have taken place had there
been no union activity.14
Although employee union activity was a motivating factor
for the January 8 shutdown, it was not the only factor. Wil-
liam Bradney, irritated at the presence of the union effort and
blaming it on George Mahon who started it, was also upset
with the problems of delay and work performance on the
Chichester job. When he discovered the men working in
weather unsuitable for roofing and manually carrying mate-
rials to the roof when they might have secured a company
crane to do the job easier and quicker, and then discovered
some flashing which he had previously directed be sealed
was not done, these discoveries and his existing
dissatisfactions with the work performance, suddenly came
together and caused him to shut the job down. A full crew
was not again used there until about April. This factor, no
full crew on the job until April 1 or thereabouts, combined
with the clearly intemperate weather on January 8 and the
credible evidence that the job shut down was a spur of the
moment decision immediately precipitated by the bad weath-
er and the performance of unproductive work on January 8
convinces me Bradney would have shut the job down on Jan-
uary 8 even if he had not been disgruntled by Mahon’s union
activity. Accordingly, I conclude and find the shutdown and
resulting layoff did not violate Section 8(a)(3) and (1) of the
Act.
Respondent’s position with respect to the failure to recall
Michael Mahon, Ballantine, McKeown, or Stasen is suc-
cinctly summarized in its posttrial brief as follows: ‘‘[Once
the decision was made not to recall George Mahon from lay-
off, none of the individuals named in the charge were re-
called because no other foremen chose to take them on his
crew.’’ The basic premise that the foremen have absolute
control over the selection of members of their crews is un-
tenable. Foremen are the lowest level supervisors Respondent
has, and the proffer that they have unfettered freedom in ac-
cepting and rejecting members of their crews immune from
interference by their management superiors is patently unbe-
lievable. Project Manager Russell Egger Jr. stops short of as-
signing total independence to the foremen in assembling their
crews by noting they have heavy influence in that selection
by virtue of their better first-hand knowledge of the indi-
vidual crew members. Egger’s statement that foremen have
rejected some employees as members of their crews must be
read in the light of his other testimony that he has favorably
responded to a foreman’s request that a particular individual
not be assigned to him. The fair implication is that he, not
they, exercise the final authority in such assignments. Wil-
liam Bradney, president of Grove, gave the following testi-
mony that supports this conclusion of final authority resting
in those superior to the foremen, and the foremen’s rec-
ommendations being accorded considerable but not conclu-
sive weight:
Q. To your knowledge, do foremen at your company
have input into selecting what crew members will work
for them, or who will not work for them?
A. Yes, they do.
Q. Has that been a long-standing practice?
A. Well, we base it on the fact that they are the most
knowledgeable for the guys out in the field, so we lis-
ten to their input.
But sometimes, we will argue with them, but the
foreman generally wins out because they tell us they
can control the guys, and well do this, and we will do
that, so we sort of let the foreman get their own head
at it. We listen to their complaints, but I want them to
hear mine, too, about what I don’t like about a specific
person.
James Kalinoski, a foreman currently employed by Respond-
ent and called as a witness by Respondent, is credited where
he testified for Respondent as follows:
Q. My question was, as a foreman do you have a
chance to say or ask the company for certain people to
work for you?
A. I can go in and say. They will determine who I
get pretty much, so they try and even out, they try and
figure out to even out men as best they can to see who
is going to work best where, and I could go in and say,
‘‘I want such-and-such a guy, but if he is going to do
better somewhere else where they know I can handle a
job, they would push him to somewhere else where he
is needed, that way the job will go along better, and
then I can gripe about it, but if it is going to work that
way, then I will save it.
Q. Would there ever be an opportunity where you
would tell the company that you didn’t want certain in-
dividuals?
A. Yes.
Q. You have done that before?
A. Yes.
A. Well, yes. Well, not particularly, but there is guys
that I will—they have given me that I don’t want with
me.
Q. Like who?
A. Well, there are guys that they hired, I don’t know
exactly their names, it was a while ago, and that I got.
From the foregoing and other relevant testimony, I gather the
picture is pretty much as James Kalinoski sets it out. Fore-
man have input, may be accommodated by their superiors,
but do not have the final say in the composition of their
crews. The argument that none of the four alleged
discriminatees were recalled because no foreman but George
Mahon would have them is not convincing because, in addi-
tion to the simple fact the basic proposition that foremen
may refuse to accept members assigned to their crews is sus-
pect on its face, (1) the evidence shows foremen do not in
fact have the final authority to say who will or will not be
on their individual crews; (2) the testimony concerning the
shortcomings of the four is general, relies on hearsay in
some respects, and is unconvincing; (3) there is no evidence
any foreman was asked or told to take one or all of them
on his crew; (4) other members of Mahon’s crew, namely
Theodore Kalinoski and Fetscher, were labeled respectively
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966); and see, also, Elion Concrete, 299 NLRB 1 (1990).
16 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
17 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.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
by Respondent’s witness Coombs as a slow worker
(Kalinoski) and as one who stood around and talked a lot
(Fetscher) yet both were rehired (Kalinoski after he in effect
renounced any union support); and (5) when William
Bradney on January 8 told the crew they would be recalled
in the spring he listed no exceptions to this promise. Re-
spondent’s asserted reasons for rejecting the four employees
from employment are excuses rather than reasons, are not
convincing excuses, and smack of pretext. Accordingly, I
conclude Respondent has not met its Wright Line burden of
showing the rejection of the four would have occurred in the
absence of union activity, and has proffered only pretextual
reasons to support its actions. The proffer of false reasons is
an indication of unlawful motivation,15 and adds strength to
the General Counsel’s case. The General Counsel has proved
by a preponderance of the credible evidence that Respondent
failed and refused to reinstate or offer to reinstate Marc
Stasen, Michael E. Mahon, Thomas McKeown, and William
D. Ballantine prior to August 1990 in order to discourage
union membership and activity. By so doing, Respondent
violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
promising its employees a benefit if they ceased or delayed
their union activity.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by failing and refusing to reinstate or to offer to reinstate
Marc Stasen, Michael E. Mahon, Thomas McKeown, and
William D. Ballantine prior to August 1990.
5. Respondent did not violate the Act in any other manner
alleged in the complaint.
6. The unfair labor practices found affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual cease-and-desist notice posting re-
quirements, my recommended Order will require Respondent
to make Marc Stasen, Michael E. Mahon, Thomas
McKeown, and William D. Ballantine whole for any loss of
earnings suffered through August 13, 1990, as a result of the
discrimination against them. Backpay shall be calculated and
interest thereon computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).16 I shall further rec-
ommend that Respondent be required to remove from its
files any references to the failure and refusal to reinstate
Marc Stasen, MichaeL E. Mahon, Thomas McKeown, and
William D. Ballantine, and notify them in writing that this
has been done and that the failure and refusal to reinstate
them will not be used against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Grove Roofing, Inc., and DiPietro Con-
struction, Inc., Ivyland, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promising employees benefits if they cease or delay
union activity.
(b) Failing and refusing to reinstate or otherwise discrimi-
nating against employees in order to discourage union mem-
bership and activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Marc Stasen, Michael Mahon, Thomas
McKeown, and William D. Ballantine whole for any loss of
earnings and other benefits between January 30 and August
13, 1990, as a result of the discrimination against them, in
the manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the failure and
refusal to reinstate Marc Stasen, Michael Mahon, Thomas
McKeown, and William D. Ballantine, and notify them in
writing that this has been done and that the failure and re-
fusal to reinstate them will not be used against them in any
way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its place of business and current construction
projects copies of the attached notice marked ‘‘Appendix.’’18
Copies of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by Respondent im-
mediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.