Hahner, Foreman & Harness, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1423 (N.L.R.B. 2004)

HAHNER, FOREMAN & HARNESS, INC.
343 NLRB No. 133
1423
Hahner, Foreman & Harness, Inc. and United Broth-
erhood of Carpenters & Joiners of America,
Carpenters District Council of Kansas City &
Vicinity and Local 201. Cases 17–CA–22382 and
17–RC–12206
December 16, 2004
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 17, 2004, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
The judge found that the Respondent violated Section
8(a)(1) of the Act by discharging employees Daniel
Caudell and Todd Stewart because they engaged in pro-
tected concerted activity. In reaching his decision, the
judge determined, inter alia, that the employees engaged
in protected concerted activity when they joined together
to protest the loss of their health insurance and pension
benefits. In its exceptions, the Respondent contends that
the employees did not engage in concerted activity, and
that, even if their conduct was concerted, the employees
lost the Act’s protection by threatening a work slow-
down. For the following reasons, we reject the Respon-
dent’s contentions.
Facts
The Respondent is a general contractor in the building
and construction industry. For more than 35 years, the
Respondent and the United Brotherhood of Carpenters &

1 We shall modify the judge’s recommended Order to conform to the
violations found, in keeping with the Board’s standard remedial lan-
guage, and in accordance with our decisions in Ferguson Electric Co.,
335 NLRB 142 (2001), and Excel Container, Inc., 325 NLRB 17
(1997).
The judge found, and we agree, that employees Daniel Caudell and
Todd Stewart were unlawfully discharged, and that the challenges to
their ballots in Case 17–RC–12206 should be overruled. Having so
found, the judge directed the Regional Director to prepare a revised
tally of ballots and issue a “certification of the results of the election.”
Until the ballots are opened and counted, however, it cannot be deter-
mined whether the Regional Director should issue a certification of
results or of representative. Thus, we shall amend the direction to
provide that the Regional Director shall issue the “appropriate” certifi-
cation.
Joiners of America, Carpenters District Council of Kan-
sas City & Vicinity and Local 201 (the Union) were par-
ties to successive 8(f) collective-bargaining agreements,
the last of which expired March 31, 2003.2 Under that
agreement, the Respondent paid the unit employees’ pen-
sion and health and welfare benefits. When the agree-
ment expired, the Respondent ceased making these pay-
ments, and the pension obligation and health insurance
coverage lapsed.
Daniel Caudell has worked for the Respondent for
over 20 years. About April 3, Caudell met with the Re-
spondent’s president, Dave Foreman, to find out how the
expiration of the collective-bargaining agreement would
affect his benefits. Foreman assured Caudell that he
would not lose anything when the contract expired.
Similarly, Respondent’s general superintendent, Bradley
Oxford, assured employees, including Caudell, that they
would not suffer any economic harm and that the Re-
spondent would pay the employees the money it had
been paying into the union benefit funds. Despite these
assurances, when he tried to fill a prescription in early
April, Caudell learned that his health insurance had
lapsed. Caudell spoke to his coworkers, including Todd
Stewart, about the health insurance problem. Stewart
was also particularly concerned about the loss of health
insurance because he needed to maintain medical cover-
age for his son.
On April 10, Caudell and Stewart received their pay-
checks and discovered that, contrary to Oxford’s assur-
ances, the checks did not contain an increase in pay to
compensate for the loss of pension and health benefits.
In the presence of his coworkers, including Stewart,
Caudell asked Job Superintendent Bob Dick why his
paycheck did not include the pension and health insur-
ance money. Dick did not have an answer and left to
find out. As he started working, Caudell complained to
Stewart about his check being short and the loss of insur-
ance.
Later that morning, Oxford arrived at the jobsite.
Stewart approached Oxford and expressed his dissatis-
faction with the cancellation of the health insurance. The
conversation became heated and Caudell intervened.
Caudell asked Oxford why his paycheck did not reflect
an increase in pay to cover the cost of the lost benefits, as
Oxford had assured Caudell and other employees it
would. Oxford replied that if the employees did not like
the situation, they could quit, as this was the way things
were going to be. Stewart and Caudell both stated that
they were not quitting, and Caudell threatened to file a
lawsuit if he were discharged. Caudell further told Ox-

2 All dates are in 2003, unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1424
ford that if this was the way things were going to be—
i.e., fewer benefits with no commensurate increase in
pay—he might not be able to work as fast as he normally
did. Stewart then jokingly stated that he was already
going so slow that he did not see how he could slow
down. Oxford commented that a slowdown would be
unacceptable. The conversation ended, and Caudell and
Stewart immediately returned to work. There is no re-
cord evidence that either of them worked more slowly
than usual.
After the employees returned to work, Oxford called
Foreman. According to Foreman, whose account of the
ensuing phone conversation the judge implicitly credited,
Oxford told him that Caudell and Stewart were protesting
the loss of benefits, and that Caudell had threatened a
slowdown. Foreman told Oxford to fire both employees.
Oxford informed Foreman that Caudell had threatened to
sue if terminated, and Foreman then told Oxford to lay
them off instead. Oxford did just that, and the employees
left the worksite. The Respondent never recalled Caudell
or Stewart despite the fact that work was available at the
worksite. The judge found, and we agree, that Caudell
and Stewart were effectively discharged.
Analysis
1. The Respondent initially contends that Caudell’s
and Stewart’s conduct was not concerted. Section 7 of
the Act protects the right of employees to engage in
“concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.” For activity
to be “concerted,” it must be “engaged in with or on the
authority of other employees, and not solely by and on
behalf of the employee himself.”3 The determination of
whether an employee has engaged in concerted activity is
a factual one based on the totality of the record evi-
dence.4 Under the totality of the circumstances present
in this case, we agree with the judge’s finding that
Caudell and Stewart engaged in concerted activity to
protest the loss of health insurance benefits or recom-
pense for their value.
As stated above, when Caudell discovered that his
health insurance had lapsed, he spoke with Stewart and
other coworkers about the issue.5 When Caudell re-

3 Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub
nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985).
4 Meyers Industries, 281 NLRB 882, 886 (1986), enfd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
5 See Cibao Meat Products, 338 NLRB 934, 934 (2003) (“[T]he ‘ac-
tivity of a single employee in enlisting the support of his fellow em-
ployees for their mutual aid and protection is as much “concerted activ-
ity” as is ordinary group activity.’”) (quoting Owens-Corning Fiberglas
Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969)), enfd. 84 Fed.
Appx. 155 (2d Cir. 2004), cert. denied 73 USLW 3077, 3293, 3296
(2004); see also Phillips Petroleum Co., 339 NLRB 916 (2003).
ceived his paycheck on April 10, he complained to Job
Superintendent Dick in the presence of his coworkers
that his paycheck did not reflect an increase to compen-
sate for the lost benefits.6 He continued to talk about the
situation to Stewart as he began working. Oxford then
arrived, and Stewart joined Caudell’s earlier protest by
expressing his displeasure over the cancellation of his
health insurance. Caudell then joined the conversation,
objecting once again to the fact that his paycheck had not
increased to make up for the lost benefits. We agree with
the judge that, although Caudell and Stewart advanced
somewhat different complaints, they were united in pro-
testing the loss of benefits. Thus, based on all of the
foregoing circumstances, we find their joint protest con-
certed.
The Respondent also contends that even assuming the
employees’ conduct was concerted it became unprotected
when, according to the Respondent, Caudell and Stewart
threatened a work slowdown. Contrary to the Respon-
dent’s contention, we find, for the reasons set forth be-
low, that the employees did not lose the protection of the
Act.
First, as to Stewart, we agree with the judge that Stew-
art did not threaten to slow down but merely made a joke
at his own expense. Stewart commented to Oxford that
he was already going so slowly that he did not see how
he could slow down anymore. Moreover, Oxford evi-
dently understood that Stewart was joking because when
Oxford contacted Foreman about Caudell’s and Stewart’s
protest, he identified Caudell alone as having made an
alleged slowdown threat.
Turning to Caudell, we find that Caudell’s remark,
when viewed in context, was nothing more than an im-
pulsive reaction expressive of his frustration with the
Respondent’s conduct, not a genuine threat. As noted
above, Caudell had been assured by management that he
would lose nothing when the collective-bargaining
agreement expired, and that any loss of benefits would be
compensated by a commensurate increase in pay. Then,
in quick succession, his health insurance lapsed, and his
paycheck was not increased as promised. When Caudell
complained about his paycheck, the very same person
who had promised the compensatory increase (Oxford)
now told him that this was the way things were going to
be, and if he did not like it, he could quit. In the stress of
the moment, Caudell made an ill-advised remark about
not being able to work as fast as he used to. However, he
promptly returned to work, and there is no evidence that

6 See Avery Leasing, 315 NLRB 576, 580 fn. 5 (1994) (finding con-
certed activity where an employee, in the presence of other employees,
complains to management concerning wages, hours, or other terms and
conditions of employment).
HAHNER, FOREMAN & HARNESS, INC. 1425
he worked any more slowly than usual. The Board has
long held that an “employee’s right to engage in con-
certed activity may permit some leeway for impulsive
behavior, which must be balanced against the employer’s
right to maintain order and respect.”7 Striking this bal-
ance here, we find that Caudell did not lose the protec-
tion of the Act.8
2. Additionally, we find that, in taking action against
Caudell and Stewart, the Respondent did not in fact rely
on their purported slowdown threats. First, as the judge
points out, Foreman decided to lay off both employees,
even though, according to Foreman’s testimony, Oxford
reported to him only that Caudell had threatened to slow
down. Second, the Respondent’s entire account of the
cessation of Caudell’s and Stewart’s employment has
shifted. At the hearing on challenged ballots in Case 17–
RC–12206, the Respondent based its challenge to the bal-
lots of Caudell and Stewart on their having allegedly vol-
untarily quit their employment. At that hearing, the Re-
spondent never asserted, as it does now, that Caudell and
Stewart were laid off for threatening a work slowdown.
The Board has long expressed the view that “when an em-
ployer vacillates in offering a rational and consistent ac-
count of its actions, an inference may be drawn that the
real reason for its conduct is not among those asserted.”9
Thus, we reject the Respondent’s assertion that it laid off
Caudell and Stewart for threatening a work slowdown
during their concerted protest on April 10.10

7 Enterprise Products, 264 NLRB 946, 950 (1982) (citing NLRB v.
Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965)).
8 Before analyzing whether Caudell’s and Stewart’s remarks about
slowing down lost them the Act’s protection, the judge set forth as the
applicable framework Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). As we have
explained, however, Wright Line does not apply where the motivation
for an adverse employment action is not disputed. See, e.g., Neff-
Perkins Co., 315 NLRB 1229 fn. 2 (1994). Where motive is at issue,
under Wright Line, supra, the General Counsel must show that pro-
tected activity was a motivating factor in the employer’s adverse em-
ployment action; and then the burden shifts to the employer to show
that it would have taken the same action even in the absence of that
protected activity. Here, however, motive is not at issue: it is undis-
puted that Caudell and Stewart were discharged as a result of their
April 10 encounter with Oxford. Having found that this encounter
constituted protected concerted activity, it remains only to determine
whether the employees’ slowdown-related remarks in the course of that
encounter were sufficiently egregious to lose them the Act’s protection.
For the reasons stated above, we find that they were not.
9 Sound One Corp., 317 NLRB 854, 858 (1995) (citing Aluminum
Technical Extrusions, 274 NLRB 1414, 1418 (1985)), enfd. mem. 104
F.3d 356 (2d Cir. 1996).
10 Assuming that Wright Line, supra, applies to this part of the ra-
tionale, we conclude that the Respondent was motivated by the Sec. 7
protest rather than by the alleged threat to slow down.
For all of the above reasons, we affirm the judge’s find-
ing that the Respondent violated Section 8(a)(1) of the Act
as alleged.
Having found that Caudell and Stewart were unlawfully
discharged, we also overrule the challenges to their ballots
in Case 17–RC–12206, and we shall sever that case from
Case 17–CA–22382 and remand it to the Regional Direc-
tor for further appropriate action.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Hahner, Foreman & Harness, Inc., Wichita,
Kansas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully laying off or discharging employees be-
cause they engage in protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Daniel Caudell and Todd Stewart full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Daniel Caudell and Todd Stewart whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth
in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the layoffs or discharges
of Daniel Caudell and Todd Stewart, and within 3 days
thereafter, notify those employees in writing that this has
been done and that the layoffs or discharges will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Wichita, Kansas, copies of the attached
notice marked “Appendix.”11 Copies of the notice, on

11 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1426
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 10, 2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that Case 17–RC–12206 is
severed from Case 17–CA–22382 and remanded to the
Regional Director for Region 17 to take the action di-
rected below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
17 shall, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballots of
Daniel Caudell and Todd Stewart, prepare and cause to
be served on the parties a revised tally of ballots, and
issue the appropriate certification.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.
WE WILL NOT lay off or discharge you because you en-
gage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Daniel Caudell and Todd Stewart full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges that they previously enjoyed.
WE WILL make Daniel Caudell and Todd Stewart
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the lay-
offs or discharges of Daniel Caudell and Todd Stewart,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that their layoffs or
discharges will not be used against them in any way.
HAHNER, FOREMAN & HARNESS, INC.
Stanley Williams, Esq., for the General Counsel.
J. Michael Kennalley, Esq. and W. Stanley Churchill, Esq., of
Wichita, Kansas, for the Respondent.
Angela M. Ford, Esq. and Michael J. Stapp, Esq., of Kansas
City, Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on February 3, 2004, in Wichita,
Kansas. Following the filing of the petition in Case 17–RC–
12206 on May 29, 2003, and pursuant to a Stipulated Election
Agreement approved by the Regional Director of Region 17 of
the National Labor Relations Board (the Board) on June 12,
2003, an election by secret ballot was conducted on July 9,
2003, among the employees in the agreed-upon appropriate
unit.1 The tally of ballots shows there were approximately 10

1 The unit is:
All journeymen and apprentice carpenters employed by the
Employer within the Kansas Counties of Barber, Barton,
Butler, Chautauqua, Cheyenne, Clark, Comanche, Cowley,
Decatur, Edwards, Elk, Ellis, Ellsworth, Finney, Ford,
Gove, Graham, Grant, Gary, Greeley, Greenwood, Hamilton,
Harper, Harvey Haskell, Hodgeman, Kearner, Kingman, Kiowa,
Lane, Logan, Marion, McPherson, Meade, Morton, Ness, Nor-
ton, Osborne, Pawnee, Phillips, Pratt, Rawlins, Reno, Rice,
Rooks, Rush, Russell, Scott, Sedgewick, Seward, Sheridan,
Sherman, Smith, Stafford, Stanton, Stevens, Sumner, Thomas,
Trego, Wallace, and Wichita, but EXCLUDING all other em-
HAHNER, FOREMAN & HARNESS, INC. 1427
eligible voters 2 of who cast their ballots for the Petitioner,
United Brotherhood of Carpenters & Joiners of America, Car-
penters District Council of Kansas City & Vicinity and Local
201 (the Union) and 1 of who cast their ballot against the Peti-
tioner. There were no void ballots and 5 ballots were chal-
lenged.
On November 24, 2003, the Board issued a Decision and Di-
rection in Case 17–RC–12206, directing that the challenge to
the ballot of Fabian Morales be overruled, and ordering that the
procedure be remanded to the Acting Regional Director for a
hearing to resolve the issues raised by the challenges to the
ballots of Daniel Caudell and Todd Stewart.
Upon a charge filed by the Union on September 10, 2003, in
Case 17–CA–22382, on October 29, 2003, a complaint and
notice of hearing issued alleging that Respondent Hahner,
Foreman & Harness, Inc. (the Respondent or the Employer) has
engaged in various actions and conduct violative of Section
8(a)(1) of the National Labor Relations Act (the Act). The is-
sues raised by the challenges to the ballots of Daniel Caudell
and Todd Stewart were consolidated by the Acting Regional
Director for hearing and decision with the issues in Case 17–
CA–22382. The complaint alleges, Respondent admits and I
find that at all times material, Respondent has been a corpora-
tion, with an office and place of business in Wichita, Kansas,
engaged in the building and construction industry, that during
the 12-month period ending October 31, 2003, Respondent, in
conducting its business operations, purchased and received at
its facility goods valued in excess of $50,000 directly from
points outside the State of Kansas and Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The complaint also alleges and
Respondent admits and I find that at all material times the Un-
ion has been a labor organization within the meaning of Section
2(5) of the Act. It is further alleged and admitted and I find that
David A. Foreman is president and Bradley L. Oxford is gen-
eral superintendent and that at all material times they have each
been supervisors of Respondent within the meaning of Section
2(11) of the Act and agents of Respondent within the meaning
of Section 2(13) of the Act.
The complaint also alleges that on April 10, 2003, Respon-
dent’s employees Daniel Caudell and Todd Stewart concertedly
complained to Respondent regarding the wages, hours, and
working conditions of Respondent’s employees, about changes
to their health insurance, pension benefits, and wages and on
that date Respondent discharged its employees Daniel Caudell
and Todd Stewart because they engaged in the aforesaid con-
duct and to discourage employees from engaging in these or
other concerted activities.
At the hearing the parties stipulated to the following facts:
Respondent is engaged in the construction industry as a general
contractor for commercial and industrial buildings. The Union
and the Respondent had been parties to successive 8(f) collec-
tive-bargaining agreements for over 35 years. The last collec-
tive-bargaining agreement between the Union and the Respon-
dent was effective from April 1, 2002, through March 31, 2003,

ployees, guards and supervisors as defined by the National La-
bor Relations Act.
and has been entered in the record as Joint Exhibit 1. Under
article 10 of this collective-bargaining agreement Respondent
paid pension and health and welfare benefits on behalf of unit
employees into funds administered by the Kansas Building
Trades also known as Kansas Construction Trade Funds. The
amounts of these contributions are set forth in Article 12 of the
collective-bargaining agreement. Thursday, April 10, 2003, was
the last day that Todd Stewart and Daniel Caudell worked for
Respondent. The last project that Stewart and Caudell worked
on was the Southwestern Bell project in Derby, Kansas. It was
further stipulated that Robert Dick was both a foreman on this
project and a member of the Carpenters Union as is permitted.
At the hearing the General Counsel, with no objections,
amended the complaint to correct the dates appearing in para-
graph 5A and 5B to April 10, 2003.
When the contract expired by its terms on March 31, 2003,
the pension obligation and the health and welfare insurance
(health insurance) coverage of the unit employees ceased. The
employees learned of this curtailment of their benefits shortly
thereafter. Employee Daniel Caudell learned of this when he
tried to have a prescription for medicine filled and was told that
his insurance was canceled. He confirmed this by a telephone
call to the administrator of the Kansas Building Trades Funds.
About a week prior to April 10, 2003, Caudell met with Re-
spondent’s president, Dave Foreman, to find out how his bene-
fits would be affected by the expiration of the collective-
bargaining agreement. Caudell had worked regularly for Re-
spondent for 20 to 25 years. He had been subject to periodic
layoffs for lack of work when construction was slow but had
worked exclusively for Respondent, as he would be called back
to work as work became available. He was a valued employee
and had on occasion served as superintendent on Respondent’s
projects. Foreman assured Caudell that he would not lose any-
thing when the contract expired. Respondent’s general superin-
tendent, Bradley Oxford, also assured employees including
Caudell that they would not suffer any economic harm if the
labor agreement expired and told them that the Respondent
would pay the employees the money it had been paying to the
benefit funds.
Following the expiration of the labor agreement most of the
unit employees continued to work for Respondent with the
Union’s approval. It was not until early April that Caudell dis-
covered he no longer had health insurance when he tried to
have a prescription for medicine filled. Employee Todd Stewart
also learned of the expiration of the labor agreement and his
loss of health insurance, which was a matter of serious concern
to him as he is a single father with partial custody of his son
and he needed coverage to protect his son in the event of a need
for medical care. On April 10, 2003, employees picked up their
paychecks and Caudell found the fringe benefit contributions
were not on his check and his check had not been increased by
the amount of the benefit contributions as he had been assured
by Foreman that it would be. Todd Stewart also found that his
check no longer contained the fringe benefit contributions with
no commensurate increase in his pay to compensate for the loss
of the fringe benefits. Caudell asked Job Superintendent Bob
Dick about this. Superintendent Dick told Caudell he did not
know but would check with the office and left the Southwestern
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1428
Bell jobsite where they were working to check with manage-
ment. Later that morning General Superintendent Brad Oxford
arrived at the jobsite and was initially approached by Todd
Stewart who expressed his dissatisfaction with cancellation of
his health insurance. The conversation between Oxford and
Stewart became heated and Caudell joined the conversation and
then began to ask Oxford why his check had not been increased
to make up for the cost of the benefits, which he had previously
received. Oxford told Stewart and Caudell that this was the way
it was going to be and if they did not like it, they could quit.
Steward told Oxford he was not going to quit and that Oxford
would have to lay him off if they wanted to get rid of him.
Caudell told Oxford that there were three choices, he could
quit, Respondent could lay him off or they could fire him and
that he was not going to quit and if Respondent fired him, he
would file a lawsuit. During the course of this conversation,
Caudell told Oxford that if this was the way it was going to be,
alluding to the loss of benefits and no commensurate increase
in his paycheck, that he might not be able to work as fast as he
normally did. Steward made a joking comment that he was
already going so slow that he did not see how he could slow
down any. Oxford told them that a slowdown would be unac-
ceptable. Oxford testified he then went to call Foreman on his
cell phone and told him that Caudell and Stewart were threaten-
ing to slow down as a result of the loss of benefits. Foreman
told Oxford to fire them. Oxford also told Foreman that Caudell
had threatened to sue if he were fired. Foreman then told Ox-
ford to lay them off and Oxford did so immediately and sarcas-
tically said “Bye Bye” to them as they left the jobsite. Neither
employee has since been recalled to work. There was a good
deal of work available to be performed at the time as the work
on the Southwestern Bell project had just begun.
Analysis
I find that employees Caudell and Stewart were engaged in
protected concerted activities when Caudell joined Steward and
commenced to voice his complaints about the loss of benefits
and no commensurate increase in pay for the loss of benefits.
Although I note that Stewart was more upset with the loss of
his health insurance which covered his son, and Caudell ap-
peared more upset about the lack of a commensurate increase in
pay to enable him to purchase health insurance, they essentially
joined together to protest the loss of benefits with the object of
recovering the benefits or at least the amount of the contribu-
tions by Respondent to enable them to obtain benefits to re-
place the coverage they were losing. Thus, they were engaged
in protected concerted activities for their mutual aid and protec-
tion. I find they were engaged in protected concerted activities
under Section 7 of the Act. I find that the General Counsel has
established a prima facie case of a violation of the Act by Re-
spondent when it laid off its employees Stewart and Caudell
with no intention of recalling them after they complained to
Respondent with a goal of recovering their benefits. I find that
Respondent has failed to rebut the prima facie case by the pre-
ponderance of the evidence. I find the discussion of a slow
down by Caudell and the limited joking comments by Stewart
concerning his inability to slow down were not so egregious as
to lose the protection of the Act.
The Board in Meyers Industries (Meyers I), 268 NLRB 493
(1984), remanded sub. nom. Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985), noted that the concept of concerted action has its
basis in Section 7 of the Act. Section 7 of the Act in pertinent
part states:
Employees shall have the right to self-organization to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection.
The Board pointed out in Meyers I that although the legisla-
tive history of Section 7 of the Act does not specifically define
concerted activity, it does reveal that Congress considered the
concept in terms of individuals united in pursuit of a common
goal. The statute requires that the activities under consideration
be “concerted” before they can be “protected.” As the Board
observed in Meyers I, “Indeed, Section 7 does not use the term
‘protected concerted activities’ but only concerted activity.” It
goes without saying that the Act does not protect all concerted
activity. With the above, as well as other considerations in
mind, the Board in Meyers I set forth the following definition
of concerted activity:
In general, to find an employee’s activity to be ‘concerted,’
we shall require that it be engaged in with or on the authority
of other employees, and not solely by and on behalf of the
employee himself. Once the activity is found to be concerted
an 8(a)(1) violation will be found if, in addition, the employer
knew of the concerted nature of the employee’s activity, the
concerted activity was protected by the Act, and the adverse
employment action at issue (e.g., discharge) was motivated by
the employee’s protected concerted activity.
In Meyers Industries (Meyers II), 281 NLRB 882 (1986),
enfd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
the Board made it clear that under the proper circumstance a
single employee could engage in concerted activity within the
meaning of Section 7 of the Act. The question of whether an
employee has engaged in concerted activity is a factual one
based on the totality of record evidence. See, e.g., Ewing v.
NLRB, 861 F.2d 353 (2d Cir. 1988). The Board has found an
individual employee’s activities to be concerted when they
grew out of prior group activity. Every Women’s Place, 282
NLRB 413 (1986). An employee’s activity will be concerted
when he or she acts formally or informally on behalf of the
group. Oakes Machine Corp., 288 NLRB 456 (1988). Con-
certed activity has been found where an individual solicits other
employees to engage in concerted or group action even where
such solicitations are rejected. El Gran Combo de Puerto Rico,
284 NLRB 1115 (1987), enfd. 853 F.2d 966 (1st Cir. 1988).
The Board has long held, however, that for conversations be-
tween employees to be found protected concerted activity, they
must look toward group activity and that mere “griping” is not
protected. See Mushroom Transportation Co. v. NLRB, 330
F.2d 683 (3d Cir. 1964).
In Wright Line, 251 NLRB 1083(1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
HAHNER, FOREMAN & HARNESS, INC. 1429
(1983), the Board set forth its causation test for cases alleging
violations of the Act that turn, as does the case herein, on em-
ployer motivation. First the General Counsel must persuade the
Board that antiunion sentiment was a substantial or motivating
factor in the challenged employer conduct or decision. Once
this is established the burden then shifts to the employer to
prove its affirmative defense that it would have taken the same
action even if its employee had not engaged in protected con-
certed activity. See Manno Electric, Inc., 321 NLRB 278, fn.
12 (1996).
Counsel for the General Counsel must demonstrate by pre-
ponderant evidence (1) that the employee was engaged in pro-
tected concerted activity; (2) that the employer was aware of
the activity; (3) that the activity or the workers’ union affilia-
tion was a substantial or motivating reason for the employer’s
action; and (4) there was a causal connection between the em-
ployer’s animus and its discharge decision.
Counsel for General Counsel may meet the Wright Line bur-
den with evidence short of direct evidence of motivation, i.e.,
inferential evidence arising from a variety of circumstances
such as union animus, timing or pretext may sustain the Gen-
eral Counsel’s burden. Furthermore, it may be found that where
an employer’s proffered non-discriminatory motivational ex-
planation is false, even in the absence of direct evidence of
motivation, the trier of fact may infer unlawful motivation.
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966); Fluor Daniel, Inc., 304 NLRB 970 (1991). Motiva-
tion of union animus may be inferred from the record as a
whole, where an employer’s proffered explanation is implausi-
ble or a combination of factors circumstantially support such
inference. Union-Tribune Publishing Co. v. NLRB, 1 F.3d 486,
490–492 (7th Cir. 1993). Direct evidence of union animus is
not required to support such inference. NLRB v. S0-White
Freight Lines, Inc., 969 F.2d 401 (7th Cir. 1992).
It is clear as discussed above that Caudell and Stewart were
engaged in protected concerted activity when they voiced their
protests to Oxford concerning the loss of their health insurance
and the loss of their retirement and pension benefits and the
lack of an increase in Caudell’s paycheck in the amount the
Respondent had been expending on the health insurance and
pension benefits. As the General Counsel notes in his brief,
these two employees were understandably upset by the loss of
the benefits and had discussed the situation with themselves
and with other employees. Under these circumstances, the
statement by Caudell, an employee of more than 20 years, that
if he was to be paid $5 less an hour he might not be able to
work as hard as he had been was part of his protest and was not
so egregious as to lose the protection of the Act. Stewart testi-
fied that he stated he did not believe he could work any slower
in a joking reference to his normal rate of speed which was
reputed to be slow. However there was no threat made by
Stewart that he would slow down. Only after prolonged testi-
mony on cross-examination did Oxford testify that Stewart had
threatened to slow down. However this testimony is in conflict
with the testimony of Foreman as well as that of Stewart as
Foreman testified that Oxford reported to him that Stewart and
Caudell were protesting their loss of health insurance and bene-
fits and that Caudell had threatened to file a lawsuit if he were
fired and had threatened to slow down. Foreman’s testimony
clearly did not support that of Oxford concerning Stewart’s
alleged threat of a slowdown and yet Foreman testified he had
initially decided to fire Stewart and Caudell but decided to lay
them off instead. Foreman did not testify that he had received
any information whatsoever from Oxford that Stewart had
threatened to slow down and yet Foreman made the decision to
lay off Stewart as well as Caudell. This clearly demonstrates
that Caudell and Stewart were laid off because of their protest
of the loss of their health and pension benefits and at least in
Caudell’s case the lack of a corresponding increase in his pay-
check to ensure that he not sustain any loss in pay as a result of
the loss of health insurance and pension benefits as both Fore-
man and Oxford had assured him.
Applying the above-discussed relevant case law to the facts
of this case, I find General Counsel has established prima facie
cases of violations of Section 8(a)(1) by the layoffs of Stewart
and Caudell with no prospects of recall by Respondent. Essen-
tially Respondent discharged Stewart and Caudell as it had no
intention of recalling them. Respondent admittedly termed the
action as a layoff rather than a discharge as it perceived that
this might fend off the possibility of a lawsuit which Caudell
had threatened to file if he were discharged. The evidence is
uncontroverted that Respondent discharged Caudell and Stew-
art because of their engagement in protected concerted activi-
ties when they complained about the loss of benefits. I find that
the reference to a slowdown by Caudell and the limited com-
ment by Steward concerning his inability to slow down were
not so egregious as to lose the protection of the Act. I find that
the Respondent had knowledge of Caudell’s and Stewart’s
engagement in protected concerted activities, and that their
discharge was motivated by Respondent’s disdain for their
engagement in the protected concerted activities. I further find
that the Respondent has failed to rebut the prima facie cases by
the preponderance of the evidence as it has not shown that it
would have discharged them in the absence of their engagement
in protected concerted activities. I find that the discussion of a
possible slowdown by Caudell and Stewart was not so egre-
gious as to cause them the loss of the protection of the Act. I
also find that there was ample work available at the time of
their discharge. Wright Line, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
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 dis-
charging Daniel Caudell and Todd Stewart.
4. The above unfair labor practices in conjunction with Re-
spondent’s status as an employer affect commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
of the Act, it shall be ordered to cease and desist therefrom and
to take certain affirmative actions designed to effectuate the
policies of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1430
Respondent having discriminately discharged Daniel Caudell
and Todd Stewart, shall be ordered to offer them reinstatement
to their former positions, or if those positions no longer exist, to
substantially equivalent positions and make them whole for any
loss of earnings and benefits they sustained as a result of the
unlawful discrimination against them less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]