Hall Construction

National Labor Relations Board - Board Decisions

Feb 28, 1990

297 N.L.R.B. 816 (N.L.R.B. 1990)

816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Harley Hall, d/b/a Hall Construction and United
Steelworkers of America, AFL-CIO, CLC. Case
18-CA-10696
February 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 7, 1989, Administrative Law
Judge Manon C Ladwig issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief 1
The National Labor Relations Board has delegat-
ed its authority in this prodeedmg 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, 2 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hall Con-
struction, Lead, South Dakota, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order
'The General Coun;e1 filed an answering brief to the Respondent's ex-
ceptions The Respondent thereafter filed a motion to strike the answer-
ing bnef and the General Counsel then filed a motion to withdraw the
answering brief ' That motion is granted The General Counsel's answer-
ing brief was not considered by the Board
2 The Respondent has excepted to some of the judge's credibility find-
ings 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
We are also satisfied that the Respondent's contention that the judge
was biased is without merit Careful review of the record and the judge's
decision shows no statements or other evidence indicating bias, or a parti-
ality to the General Counsel's case, on the part of the judge
David M Biggar, Esq , for the General Counsel
Ronald W Banks, Esq , of Rapid City, South Dakota, for
the Respondent
DECISION
STATEMENT OF THE CASE
MARION C LADWIG, Administrative Law Judge This
case was tried in Deadwood, South Dakota, on March
1-2, 1989 1 The charge was filed December 5 (amended
December 14, January 13, and at the trial) and the com-
plaint was issued January 19
'All dates are from July 1988 to March 1989 unless otherwise indicat-
ad
In July the Respondent began constructing an open pit
gold mine for Golden Reward Mining Company for
completion in December, when it was scheduled to begin
the mining of gold ore To meet this schedule, the em-
ployees were working 6 days a week with much over-
time
On November 23, claiming that it was overstaffed
even though it was several months behind schedule, the
Respondent summarily laid off for "lack of work" a
single employee He was operator Phillip LeMieux, who
was organizing for the Union Then on December 6,
after learning at noon that employee Lonny Mertz was
replacing LeMieux as union organizer, the Respondent
su nanly discharged him Mertz was one of its highest
rated operators
The primary issues are whether the Respondent, (a) re-
peatedly coerced employees through interrogations and
threats of discharge, blacklisting, closure of business, etc,
and (b) discnminatonly laid off LeMieux and discharged
Mertz for their union activity, violating Section 8(a)(1)
and (3) of the National Labor Relations Act
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent, a sole proprietorship owned by
Harley Hall, does excavation, land clearing, and road
building from its facility in Lead, South Dakota, where it
annually receives goods valued over $50,000 from other
enterpnses that are located within the State but have re-
ceived the goods directly from outside the State The
Respondent admits and I find that it is an employer en-
gaged in commerce vithin the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
In July, toward the completion of a job in Wyoming,
the Respondent began the construction phase of an open
pit gold mine near Lead, South Dakota, for the Golden
Reward Mining Company Owner Harley Hall trans-
ferred Supervisor Jeffrey Garrett and some of the em-
ployees from the Wyoming project and began hiring
other employees locally
In late September, after completing the Wyoming
project, Hall transferred Supervisor Delbert Boyd to the
Golden Reward project to take over the finishing of the
leach pad, supervising the "finish crew" Garrett contin-
ued to supervise the "rough crew," performing the earth
work
As admitted in the Respondent's brief (at 2), this con-
struction work (under one contract) was scheduled to be
completed and the production phase (under a separate
contract) was to begin December 25, removing the top-
297 NLRB No 138
HALL CONSTRUCTION 817
soil and overburden and hauling the gold ore to the
crusher
B Antiunion Motivation
The evidence is clear that the Respondent Was deter-
mined to keep the project nonunion, as required by
Golden Reward in its first draft of the contract language
Although the signed contract did not contain this
clause, providing that the contract would be canceled if
the Respondent became union (Tr 361), the employees
were informed of the provision Owner Hall admitted
that there was a rumor about such a proposal, "and it is
pretty obvious that it came from me" (Tr 440-441 )
Furthermore, sometime after operator Phillip LeMieux
was laid off on November 23 and operator Lonny Mertz
was discharged on December 6, Supervisor Garrett told
operator John Jordan that the Golden Reward contract
still included that provision As credibly testified by
John Jordan (who Impressed me as being an honest wit-
ness), Garrett said that it was written "into our contract
that we could not unionize, that Golden Reward could
and would break their contract with us if, in fact, we did
unionize" (Tr 199)
Before discussing other evidence showing the Re-
spondent's determination to remain nonunion, I discussed
its defense that Garrett was not a statutory supervisor
C Garrett's Supervisory Status
The evidence is clear that before the charge was filed
in this case, both the Respondent and the employees,
knew Jeffrey Garrett to be a supervisor
The payroll records show that when he was trans-,
ferred from the Wyoming project, where he was listed as
"supervisor" with a rate of $12 90 an hour, he was given
a 50-cent raise to S13 40 an hour in the same classifica-
tion of "supervisor" (R Exh 3, pp 3 & 7)
It is undisputed that when operator LeMieux first vis-
ited the job site in July, Garrett introduced himself as
the foreman and told LeMieux "to come back later be-
cause he didn't know [at that time] what he was going to
need for men or what equipment he would have" (Tr
14)
It is also undisputed that when operator Mertz was
hired in September, Owner Hall introduced Mertz to
Garrett as his supervisor (Tr 85)
When Delbert Boyd was transferred from Wyoming in
late September, he retained his payroll classification of
"supervisor" Although Boyd had greater seniority than
Garrett, he did not receive a raise in pay upon his trans-
fer His $13 25 rate remained the same-15 cents an hour
less than Garrett's new $13 40 rate (R Exh 3, pp 1 &
6) Boyd became the foreman over the finish crew
(building the leach pad) Garrett continued to supervise
the rough crew, responsibly directing their work (Tr
17, 24-27, 34-35, 89, 516, 551, 553)
Owner Hall, in his pretrial affidavit dated December
28 (R Exh 8, p 2), stated his belief that Garrett and
Boyd are called "superintendent on our payroll system"
In effect, Hall admitted that Garrett was a supervisor by
stating that both "Garrett and Boyd can fire employees"
He added that "it might not stick" and gave as an exam-
ple Garrett's firing operator Bonita Omang, whom Hall
rehired 2 days later
Operator LeMieux witnessed Omang's discharge At
the end of an argument and some namecalling, Garrett
told her "You can get in your pickup and you can leave
the job I don't want you working for me" (Tr
18) That same evening, Garrett told operator Mertz that
he had fired Omang that morning (Tr 89) I discredit
Garrett's claim that he merely told Omang to get off the
jobsite "until I could talk to [Owner] Harley [Hall] about
the situation" (Tr 266, 445-446)
Later in his testimony, Garrett conceded (Tr 276) that
he terminated operator James Faul (on July 30, R Exh
3, p 7) and also conceded (Tr 351) that he fired driller
Byron Williams (see R Exh 3, p 9)
Garrett testified that "I'm sure I've been called a fore-
man," that "I suppose" that "Maybe" Owner Hall has
called him foreman, and that "Well, I am sure he has,
yeah" (Tr 256) Yet Garrett insisted, "I'm just a lead-
man" and "I am sure I'm not" designated with the title
"supervisor" on the payroll (Tr 255-256) When shown
that his title was "supervisor," he claimed, "In no way
am I a supervisor" By his demeanor on the stand, Gar-
rett appeared willing to give any testimony that might
help the Respondent's cause
I discredit Garrett's denials and find that he was a su-
pervisor within the meaning of Section 2(11) of the Act
I infer that his claim that he was merely a leadman was
fabricated as a defense to the Respondent's alleged coer-
cive conduct to keep out a union
D Extensive Coercive Conduct
The Respondent's determination to keep the project
nonunion is shown by its extensive coercive conduct
The first incident was about September, several weeks
after oPerator John Jordan discussed a union with other
employees in his car pool As Jordan credibly testified,
Supervisor Garrett met Jordan in the maintenance yard
and asked him if he had been talking union and Jordan
answered yes Garrett "said that he didn't want to hear
any more talk about it or [Jordan] would be gone [empha-
sis added] " (Tr 197) I find that the threat of discharge,
and the interrogation in the context of the threat, clearly
were coercive and violated Section 8(a)(1) of the Act
I note that when Garrett was called as a defense wit-
ness, the respondent counsel did not question him about
this or the following incidents
On November 17, when the employees were "snowed
out," operator Phillip LeMieux went to the union hall
(Tr 28, 55-56, 91) The next day LeMieux talked to op-
erator Lonny Mertz and other employees about a union
meeting on November 28, and Mertz in turn invited sev-
eral employees to the meeting (Tr 28-29, 91-93)
The next Monday, November 21 (2 days before Le-
Mieux's layoff), Supervisor Garrett again approached op-
erator John Jordan in the maintenance yard Garrett
asked Jordan if he was part of the union talk, if he had
been approached, and if he knew who it was To each
question, Jordan answered no Garrett then said he felt
he knew who it was, that it was that "Goddamn
[LeMieux] and that 'fucker' in .the 10 [referring to Mertz,
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Caterpillar D-10 operator] " (Tr 198) Particularly in
view of Garrett's earlier threat of discharge if he heard
any more talk from Jordan about a union, I find that this
interrogation was coercive and violated Section 8(a)(1)
That same day, November 21, when Garrett was as-
signing operator LeMieux to a different job, Garrett said
he had heard some nasty rumors of union crap and asked
if LeMieux knew anything about it LeMieux said he
knew nothing about it Garrett then said, "I got reason
to believe you do because four people have pointed their
finger at you" LeMieux denied believing in unions It is
undisputed that Garrett threatened, "Well, if I find out
that you are at the bottom of this, it could cost you your job
[emphasis added] " (Tr 29)
As alleged in the complaint, I find that Garrett coer-
cively interrogated LeMieux, created the impression of
surveillance of the employees' union activities, and
threatened discharge, violating Section 8(a)(1)
On Tuesday, November 22, Garrett stopped LeMieux
on the job and said, "I think I know who is starting this
union bullshit It's that goddamn Lonny Mertz, isn't it?"
LeMieux said he did not know and Garrett said, "Well, I
think it is" Garrett added that he had a notebook and
was keeping track of all the union bullshit, and "I'll have
this when we go to court" (Tr 31-32) I find that the
reference to the notebook created the impression that
Garrett was keeping the employees' union activities
under surveillance and was coercive, as was the interro-
gation, particularly in the context of the earlier threat of
discharge, further violating Section 8(a)(1)
On Wednesday, November 23, shortly before Le-
Mieux's layoff, Supervisor Garrett stopped LeMieux on
the job It is undisputed, as LeMieux credibly testified
(Tr 32)
[Garrett] waved me to come down to the pickup
Q What did he say?
A He said, "I'm really disappointed in you, Phil,
you have lied to me" And he said, "[Owner]
Harley Hall is mad at you too because he said, 'we
know that you are the one that started this union bull-
shit out here" He said, I guess, from now on we
will call you "Phil, Phil, the union man"
Q What did you say?
A I said, "Well, I guess so" [Emphasis added ]
Thus, LeMieux acknowledged his union activity (By his
demeanor on the stand, LeMieux appeared to be an
honest, forthright witness )
In Owner Hall's December 28 pretrial affidavit (R
Exh 8 p 3), he claimed
At the time that LeMieux was laid off, I do not
believe that there was any union activity among the
employees I never had heard LeMieux's name
linked to any union activity at the time he was laid
off
Having credited LeMieux's undisputed testimony that
Garrett said Hall was "mad" at LeMieux because "we
know that you are the one that started this union," I find
Hall's pretnal claim denying knowledge of LeMieux's
union activity to be a fabrication I note that he did not
repeat the claim at the trial
Particularly in the context of Garrett's threat 2 days
earlier that if he learned that LeMieux was "at the
bottom of this, it could cost you your job," I find that
Garrett's statement that Owner Hall was angry at Le-
Mieux because "we know that you are the one that start-
ed this union bullshit," as well as Garrett's calling him
"Phil, Phil, the union man," were coercive threats of un-
specified reprisals that violated Section 8(a)(1)
Supervisor Garrett's alleged coercive conduct on De-
cember 6, shortly before Mertz' summary discharge, is
discussed later
Sometime in December after operator Mertz' dis-
charge, Garrett spoke to operator John Jordan again
about the Union It is undisputed that Garrett said that it
was written into the Golden Reward contract that "we
could not unionize, that Golden Reward could and
would break their contract with us if, in fact, we did un-
ionize and all of us guys would be blackballed from
any work in the Black Hills we wouldn't be able to
find any more construction work at any of the mines or
with any heavy equipment" Garrett added that Owner
Hall "would sell out before he would run a union crew"
and "we wouldn't get a raise that we were antici-
pating at the start of production" (Tr 199-200) Garrett
had told Jordan in July that the employees "would be
getting a raise when we went from construction to
mining production" and that the raise would be "in the
area of a dollar" (Tr 193-194)
As alleged in the complaint, I find that the threatened
loss of employment, closure of the business, blacklisting,
and loss of a previously promised wage increase were
clearly coercive and violated Section 8(a)(1)
E Operator LeMteux's Layoff
1 Surpnse for "Phil, Phil, the union man"
The evidence shows that on the same day that Owner'
Harley Hall and Supervisor Garrett learned that operator
Phillip LeMieux was the one who started the union orga-
nizing, he was laid off, purportedly for lack of work
As discussed above, the Respondent had threatened in
September to discharge employee John Jordan if it heard
any more talk from him about a union Two months
later, on November 17, LeMieux went to the Union and
began organizing the employees The following Monday,
November 21, Supervisor Garrett told him that "four
people have pointed a finger" at him When LeMieux
denied any involvement, Garrett threatened, "Well, if I
find out that you are at the bottom of this, it could cost
you your job"
The next day, November 22, as also discussed, Garrett
told LeMieux that he thought operator Mertz (who was
discharged December 6) "was starting this union bull-
shit" But a day later, November 23, the Respondent
learned definitely that it was LeMieux who initiated the
union organizing As quoted above, Garrett told Le-
Mieux that Owner Hall was angry at him because they
knew "you are the one that started this union bullshit out
HALL CONSTRUCTION 819
here" Garrett began calling LeMieux "Phil, Phil, the
union man"
Later that day, Wednesday, November 23, as Supervi-
sor Garrett was giving operator Mertz his paycheck,
Garrett kept repeating, "Where's Phil, Phil, the union
man'?" and said, "I got a surprise for Phil" (Tr 95)
When operator Phillip LeMieux arrived for his pay-
check, unaware of any planned layoff (Tr 40), Garrett
put the check on the bottom After the others were paid
(Tr 33),
Garrett asked, "Phil, how would you like to be laid
off for two weeks'?" I said, "Well, I wouldn't like it
but there ain't much I can do about it" He said,
"Well, 'Phil, Phil, the union man,' I am going to lay
you off for two weeks and I may call you back"
Then he handed me my paycheck I said, "Well,
what is the deal'?" He said, "That's the way I do
things" [Emphasis added ]
Thus, Garrett linked the surprise "layoff" to LeMieux's
being "Phil, Phil, the union man" LeMieux was the only
employee being laid off (Tr 36) He was never called
back
Under these circumstances I find that the General
Counsel has made a prima facie showing sufficient to
support the inference that LeMieux's union organizing
was a motivating factor in the Respondent's decision to
lay him off Wright Line, 251 NLRB 1083, 1089 (1980)
2 Purported overstaffing
Ignoring the above evidence, the Respondent contends
that the General Counsel has not presented a prima facie
case It argues, however, that it would have laid Le-
Mieux off even in the absence of the protected conduct
because, with 19 employees, it was overstaffed by 4 or 5
employees Yet, it was laying off only one person, Le-
Mieux
In arguing that it was overstaffed, the Respondent ig-
nores the undisputed fact (Tr 20-21, 86) that LeMieux
and the other employees were regularly working much
overtime 6 days a week and 10 or 10-1/2 hours a day
This meant, weather permitting, a 60- or 65-hour work-
week Still the construction could not be completed and
the production began by December 25 as scheduled
I note that Owner Hall, when testifying on direct ex-
amination by respondent counsel, claimed that the origi-
nal schedule for beginning mining was "somewhere
around the first of March" 1989, that the schedule had
been revised to May 25, "and that might not even be
able to be met" (Tr 372) To the contrary, Hall admitted
in his pretrial affidavit (R Exh 8 p 1) "The construc-
tion phase began in July 1988 We were scheduled to end
this and begin the mining phase in December 1988 [em-
phasis added] " Moreover, the Respondent concedes in
Its brief (at 2) that both it and "Golden Reward were
scheduled to be in the production phase by December 25,
1988 [emphasis added] "
Thus, the Respondent had a contractual schedule of
December 25 to meet and had been raising its operating
costs (and lowering its "earned income per man hour")
by paying for much overtime work, apparently attempt-
ing to honor its contractual obligation I note that Owner
Hall admitted in his pretrial affidavit (R Exh 8, p 4)
that "Until November, we felt we would be going into
the mining phase in December" I infer that Hall, by
shifting his testimony between the time of his December
28 pretrial affidavit and the time of his March 2 appear-
ance on the stand, was attempting to conceal an actual
shortage of employees to meet the December 25 sched-
ule (By his demeanor on the stand, he impressed me as
being a witness who was less than candid )
To prove the opposite, that the project was not under-
staffed but was instead overstaffed, the Respondent pre-
sented a graph at the trial (R Exh 5), tabulating figures
from July through February It shows higher "total pro-
duction man hours per month" from August through
November—when the employees were assigned much
overtime in the apparent attempt to meet the December
25 schedule The graph also shows lower "earned
income per man hour" and "cubic yards per man hour"
for those months
When asked about the low production per man hours,
Owner Hall ignored the overtime hours and claimed, "I
guess [it was] a bad judgment call on my part To let the
number of employees build up that high was one of the
problems and there were probably some related things
that helped hurt the production some" (Tr 384-385) He
later claimed (as stated in the R Br at 17) that he kept
additional workers on just in case there was a break in
the weather during which other productive jobs could
be performed (Tr 427) But he revealed in other testimo-
ny that there was no overstaffing, that all the production
hours were necessary, that there were various reasons
for the lower monthly income shown on the graph, and
that (Tr 385) the weather played only a factor of
"maybe ten percent"
As Hall testified, the reasons for the lower monthly
income included the following
(a) Lack of clear access for "our haul trucks to
keep a good straight haul route" (Tr 385),
(b) Getting into harder rock than expected (Tr
385),
(c) The "materials weren't quite what had been
expected throughout the job" (Tr 427),
(d) Alterations "in the way we approached the
project" (Tr 428),
(e) Doing necessary work although "not a pay
item" (Tr 430),
(f) Deferred pay until a job is completed (Tr
430),
(g) Building foundation for the future without
pay in the particular month (Tr 432),
(h) Mistakes in bidding the job, resulting in some
pay items being more productive than others (Tr
433), and
(i) Although paid by the cubic yard, having to
haul loads from "almost from one end of the project
to the other" when "doing the fill by the process
building" (Tr 434)
Owner Hall admitted it was a "rush thing" (Tr 431),
"It was things that needed to be done" (Tr 432), "It was
stuff that was very demanding that had to be done at
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that time when we had a full push on (Tr 433) At
that time getting the mine ready for operation was the
full intent (Tr 433) and all the work that was done
was necessary work to get it into operation (Tr 432)
At one point Hall answered that how he could be
overstaffed under these circumstances was a hard ques
tion to answer (Tr 432) He later admitted that he
needed every man that he had in October because he had
urgent work to be done and stated that whether he was
overstaffed was getting into a little bit of semantics
He admitted that the same problems existed in Novem
ber (Tr 434-435)
Despite these admissions at the trial, Owner Hall
claimed it was obvious to me that I needed far less
people on the payroll on that particular project and
That I need to have from four to five less people than I
had on the payroll at that time (Tr 389-390) I find this
to be a fabncation He laid off only one person Le
Mieux, upon learning (In Supervisor Garrett s words)
that LeMieux was the one that started this union bull
shit out here
The Respondent s graph (R Exh 5) shows that the
production man hours went down in December January
and February But by the time of trial the work was fur
ther behind schedule The original scheduled date of De
cember 25 for completing the construction phase had
been revised again from March 1 to May 25 This further
delay indicates a shortage of essential dozer operators
such as LeMieux, Mertz (discharged 2 weeks later), and
Randall Thompson (discharged also in December for
safety reasons, Tr 391, 468), none of whom was replaced
at the time (Two dozer operators formerly employed
on the Wyoming project were rehired the second day
before the trial, Tr 456-457)
Although the graph shows an increased income per
man hour after November it is obviously comparing this
period to the time when the Respondent was using much
overtime and encountering unexpected problems when
attempting to meet its contractual obligation to begin
mining ore by December 25 I find that the graph shows
neither that the lower earned Income per man hour
before LeMieux s layoff was caused by overstaffing nor
that the increase after the layoff was the result of a de
creased staff The decreased staff supplies instead at least
one reason for the further delay
I reject the Respondent s contentions that it was
overstaffed and that there was a need to lay off four or
five employees when it laid off this one employee
Weather permitting LeMieux was regularly working
much overtime
3 Discriminatory layoff
Hired in August as a Caterpillar D 9 bulldozer opera
tor (Tr 15, 37-38), LeMieux had worked also on the D 9
push Cat, three different rollers, a Caterpillar D 6 bull
dozer, a 16 blade, and haul trucks (Tr 24) He had
been running dozers off and on since 1964 (Tr 15) At
the time of his layoff he was working about 50 percent
of his time on the D 9 dozer 20 percent on the push
Cat, 10 percent on a roller, and 20 percent on a haul
truck (Tr 24)
Supervisor Garrett had criticized LeMieux s driving of
the 50 ton Caterpillar haul truck while he was learning
to operate it (Tr 24-25 78 290-291) but Garrett never
removed him from driving it (Tr 59) Besides this cnti
cism as LeMieux credibly testified neither Garrett nor
Owner Hall had ever criticized his work (Tr 36) Gar
rett testified that he liked LeMieux, who was fun to have
around (Tr 291), and Hall admitted I think Phil s atti
tude was good (Tr 395) Although Garrett claimed at
the trial that LeMieux was not a real sharp operator
(Tr 286) and Hall claimed that he probably felt that
LeMieux was the least qualified operator (Tr 395), the
Respondent had tolerated any shortcomings until Le
Mieux initiated the union organizing
Particularly in view of the large amount of work re
maimng in the construction phase of the project causing
a further revision of the scheduled date for beginning to
mine the ore, I find that the Respondent has failed to
show that there was insufficient work for LeMieux when
Supervisor Garrett called him Phil Phil the union
man and surprised him with the layoff from his job that
was requiring much overtime
I therefore find that the Respondent has failed to carry
its burden to demonstrate that it would have discharged
operator Phillip LeMieux in the absence of his protected
conduct Wright Line 251 NLRB 1083 1089 (1980) Ac
cordmgly I find that it discnmmatonly laid off LeMieux
in violation of Section 8(a)(3) and (1) further showing its
determination to keep the project nonunion
F Mertz Summary Discharge
1 How the union meeting went?
Lonny Mertz, hired about September 6 (Tr 83) oper
ated the large Caterpillar D 10 bulldozer He also operat
ed the 235 backhoe the Caterpillar D 6 and D 9 dozers
the 16 motorgrader and a vibrator compacter (Tr 87)
Because of his high skill and versatility he was paid $12
an hour This was the highest operator rate, except the
rates pawl operators Keith Omang and David Wisser,
who had been transferred from the Wyoming project
(R Exh 3) The Respondent admits in its bnef (at 3) that
he was recognized by the rest of the crew as a good
operator Supervisor Garrett admitted that he was
always willing to work overtime and was real energet
ic (Tr 294)
Upon hiring Mertz Owner Hall had asked would the
union have anything to say about you coming to work
here9 and he answered that no we are nonunion up
there (where he was working) It is undisputed that
Hall said that is what he wanted to hear (Tr 84)
After union organizer LeMieux was laid off November
23 only Mertz and LeMieux attended the scheduled No
vember 28 union meeting (Tr 95)
On December 6 Mertz left some union pamphlets and
authorization cards on the dashboard of his jeep where
three antiunion employees from the Wyoming project
Omang Wisser and Larry Blair would see them when
they returned to their vehicle for lunch (Tr 122-123
134 356-357 567) About 12 05 p m after Supervisor
Garrett gave Mertz his next assignment Garrett asked
HALL CONSTRUCTION 821
how the union meeting went (Tr 118-119) Then, ac-
knowledging for the first time his support of the Union,
Mertz said the meeting went all right (Tr 118-120, 122)
Garrett proceeded to interrogate and threaten Mertz
As Mertz credibly testified (Tr 120-121), Garrett asked
"what we planned on accomplishing in getting the
union" After some discussion Garrett said that if the
Union comes in, "Harley [Hall] will Just sell out and he
will close the doors" Mertz added that
people like Keith [Omang], Randy [Thompson, an-
other former Wyoming operator] and myself
who don't vote for the union will be black-
balled Just like the rest of you guys and if another
company comes in here and takes up the contract,
they will have a list all our names and none of us
will ever work in this area again If that hap-
pens, I will come after you and I will hurt you real
bad You can count on it we will be in Hell
City together
Q What did you say to him?
A Well, I asked him if that was a threat He said
no, it's a promise
Having claimed on the stand that he was merely a
nonsupervisory leadman, Supervisor Garrett conceded
that he asked Mertz how his union meeting had gone He
testified that Mertz answered, "Oh, pretty good," and he
asked "What are you guys trying to accomplish, to get a
union in here?" (Tr 345-346) He further testified (Tr
346-347)
Q And then you told him that if the union came
in, either the mine, Golden Reward, would kick the
company out or Harley Hall would shut down Isn't
that right?
A Yeah, I guess I said that .
Q You told him if the union went through that
all the employees at Hall would be blacklisted in
the area and not be able to get jobs in the area
again? .
A Well I said "I believe there is a possibili-
ty of everybody being blackballed"
I find it clear, as alleged in the complaint, that the Re-
spondent unlawfully coerced employees in violation of
Section 8(a)(1) by (a) interrogating the employee, (b)
threatening that it would close its business and that its
employees would be blacklisted in the area if they select-
ed the Union, and (c) threatened the employees with
physical harm
Less than 4 hours after this conversation, Mertz was
summarily discharged
The purported reason was an incident the day before,
December 5 when, as discussed below, Mertz was actual-
ly following instructions—by backing off and parking the
Caterpillar D-10 dozer, waiting for Supervisor Garrett,
to avoid damaging the dozer
2 The December 5 incident
About 1 p m on December 5, as operator Mertz credi-
bly testified, Supervisor Garrett instructed him to return
with the D-10 Caterpillar to the future site of the pn-
Mary crusher building where he had been assigned the
week before, but had been reassigned before he could do
the work This was an area about 40 x 60 feet in size, at
the foot of a hill where two of the humps were large,
round "fingers" of solid stone, "jutt[ing] out from the
face " (Tr 97-98, 102-104)
Garrett instructed Mertz to "go up there and rip up
those humps" because the loaders were out of material
and "he didn't have any place for the loaders to go" He
explained that the drilling rig had broken down that
morning and they could not get in and load holes with
explosives and blast the area Garrett said that he knew
"it is going to be tough" and he did not know "what I
could do with it," but "get what you can" (Tr 98-100)
Garrett told Mertz not to disturb any of the ground (at
the foot of the hill) because they were not quite sure
where the crusher wall would come out and they
wanted the ground "nice and leveled out so they could
get up there and survey the exact spot" (Tr 127, 157,
170)
As instructed, Mertz started ripping the area in front
of the face down to the ground level, using the metal-
shaft npper mounted on the rear of the D-10 dozer
When two large 992 loaders and four 50-ton Caterpillar
haul trucks (R Exhs 6 & 7, Tr 419-422)■arnved, they
loaded and hauled off an estimated 20 to 40 loads Mertz
estimated 20 loads (5 for each of the haul truck opera-
tors) and haul truck operator Merle Jordan estimated
that each of the four drivers hauled 7 to 10 loads (Tr
100-103, 105, 153, 211-212 ) I note that although Owner
Hall admitted that the Respondent keeps "load counts
every day" (Tr 382), the Respondent did not dispute this
quantity of material being hauled from this area that
afternoon
Mertz ripped the area for about an hour before he
reached the two fingers of solid stone Then, as he credi-
bly testified, he "tried all different directions to rip it out
and couldn't phase it" (Tr 100-103) While testifying,
Mertz impressed me most favorably by his demeanor as
an honest, trustworthy witness
It is undisputed, as Mertz further credibly testified,
that both Garrett and Owner Hall had given him explicit
instructions that "if I didn't think I could rip something
up, don't tear the machine up and attempt to do it Just
pull over to the side and wait for further instructions be-
cause it was cheaper to drill and blast than it was to tear
the equipment up" (Tr 105)
Earlier, while preparing the leach pad site, Mertz
"broke the ripper right in half' when hitting such a
stone finger (Tr 104) Owner Hall testified that Caterpil-
lar charges $6000 for the ripper (Tr 415) Mertz estimat-
ed a cost of $1000 to repair it (Tr 104)
It is undisputed that on about five or six earlier occa-
sions, Mertz had decided that he could not rip an area
The Respondent had never questioned his decision
"They would Just send me to another area and bring the
driller in there and they would drill it, put holes in it and
load it with powder and blast it" (Tr 113)
It is also undisputed that Garrett had instructed him
"to sit and wait for further instructions" upon finishing
an assignment "because he said don't do something if
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
you just think that is what we want done because
it's going to cost a lot more to correct it than it is for
you to just sit there and wait for further instructions"
(Tr 106) Garrett had given similar instructions to dozer
operator LeMieux (Tr 26)
Following these instructions, Mertz pulled the D-10
dozer over to the side to wait for Supervisor Garrett
(Tr 103) When he saw loader operators Omang and
Wisser standing behind their idle loaders and talking, he
backed the D-10 dozer beside Wisser's loader and told
Wisser, "I don't know what we are supposed to do up
here I can't rip any more of this stuff the two
humps that were left I couldn't rip them out I
meant those two rock fingers that jutted out, I couldn't
rip those" (Tr 108, 169) (Wisser recalled, Tr 546-547,
that he and Mertz "discussed whether or not [Mertz]
should back on up the slope and try to push some of the
looser material from above down, and I told him I didn't
know, and he said he didn't know if he should do that
because he hadn't been told to do that ")
While waiting, Mertz filled out his inspection report,
checked the dozer for an exhaust leak, and asked haul
truck operator Blair to find Garrett (Tr 106-108) After
Blair left with a load (from the two loaders' "pick[mg]
away at some of the material"), the loaders backed off
and parked dgam Mertz then "took the dozer and
moved over" fo "another little spot that I was supposed
to rip up, there was a few humps there and I motioned
the trucks to back out of there I started ripping that
up" (Tr 109) (Wisser recalled, Tr 547, that after he
and Mertz talked, Mertz "ripped down the lefthand side
where the rock slope went up ")
After ripping this small area, as Mertz credibly testi-
fied, "I looked back when I was backing up and [Super-
visor] Delbert [Boyd, the finish crew foreman] was sa-
ting there in his pickup I got out and told [Boyd]
that I couldn't rip up the material That it was just too
hard" (Tr 109)
Mertz asked if he could take the D-10 dozer on top of
the hill and push down loose material for the loaders (as
he had done on previous occasions when they ran out of
material and it was too hard to rip) Boyd would not ap-
prove in Garrett's absence Boyd said he would go get
Garrett (Tr 109-110) When called as a defense witness,
Boyd recalled that Mertz said, "This cannot be ripped, it
has to be drilled and shot," and he responded, "All
right" (Tr 518, 541) He also recalled that Mertz asked
to go up above and do some work up there (Tr 530)
After about 15 minutes Supervisor Garrett arrived and
sent the loaders and trucks to another area He comment-
ed "it's kind of tough, huh?" and Mertz answered yes, he
could not rip it Garrett then said "don't worry about it
and instructed him to "work your way [with the D-10
dozer] up to the top and start pushing that loose material
down" (as Mertz had asked Boyd's permission to do)
(Tr 111 ) Garrett testified that Mertz "told me he
couldn't rip it we did have some loose material up
on top and I told him to go up and push some of that
down" (Tr, 320-321, 344-345)
After Garrett left, Mertz moved the D-10 dozer to the
top and began pushing the loose material down over the
face (Tr 113) The next morning Garrett told him to
take the smaller D-9 dozer on top the hill and continue
pushing the loose Datenal down After about 2 or 2-1/2
hours, the loose material covered the two stone fingers
that required blasting if they were to be removed (Tr
116-117, 128)
Thus, the December 5 incident was a mere routine
matter at the time Garrett did not question Mertz' deci-
sion that the fingers of solid stone could not be ripped
He found no fault with Mertz' parking the D-10 Cater-
pillar bulldozer and awaiting further assignment, as Gar-
rett had specifically instructed in the past Although the
other operators on the job were sent home early that
afternoon for lack of work, none of them complained
that Mertz had not acted properly
3 Laying basis for discharge
After lunch the next day, December 6, Supervisor
Garrett began laying the basis for Mertz' discharge, with
the assistance of operators Blair, Omang, and Wisser As
discussed above, they were the antiunion former Wyo-
ming-project employees who ate their lunch near Mertz'
jeep where the union campaign literature was displayed
on the dashboard
Supervisor Garrett testified that shortly after he asked
Mertz about how his union meeting went, Blair, Omang,
and Wisser came to him and complained about Mertz'
actions the day before Garrett testified that they report-
ed that Mertz "just tried to rip a couple of times," then
pulled off to the side, threw "his feet up on the dash and
pulled out a book" (Tr 322-323, 347)
I find that undoubtedly, Garrett knew that this com-
plaint was inaccurate Other than the discovery of union
literature on the dashboard of Mertz' jeep during lunch,
there was no reason for these antiunion employees to be
making the complaint at that time rather than doing so
when they were sent home early the day before for lack
of work Furthermore, Garrett was in charge of this part
of the construction work and the Respondent's daily
load counts showed the large quantity of material hauled
from that area—something that would not have hap-
pened if Mertz had failed to do the ripping for the load-
ers
Yet, on the pretense that he believed the report to be
true, Garrett immediately went to Supervisor Boyd, said
"we had some people that were pretty upset," and gave
him the report (Tr 323) After being shown his Decem-
ber 28 pretrial affidavit (G C Exh 2), Garrett admitted
that he also told Boyd that he thought Mertz should be
laid off (Tr 350) Boyd suggested, "Well, let's go get the
D-10 and take it up to the area and see if it is nppable"
(Tr 323)
Supervisor Boyd (who considered himself the superin-
tendent, even though his hourly wage of $13 25 an hour
was 15 cents lower than Garrett's) recalled what Garrett
said that the loader operators had reported that Mertz
"tried very little to do any ripping up there," that he
"backed in about twice and scratched along the top,"
and "pulled off to the side and parked the [D-10] and got
out a book, and sat there" (Tr 520)
Boyd credibly testified that he then asked Omang if
this was true and if he was sure and Omang said yes, "he
HALL CONSTRUCTION 823
would swear to it" He also asked Wisser and "he said he
would swear to it too" (Tr 521 ) I discredit Wisser's
claim that his discussion with Boyd was early that morn-
ing (Tr 550, 553)
Thus, a few minutes after questioning Mertz about the
union meeting and threatening closure of the business
and blacklisting of the employees if the Union came in,
Garrett was pretending to rely on the belated complaint
from these three antiunion employees—without asking
them why they had waited until after lunch this next day
to make the complaint Garrett reported the complaint to
Supervisor Boyd and' admittedly proposed Mertz' layoff
Furthermore, Garrett and Boyd were going to check
to see if the area could be ripped with the D-10 dozer,
even though Garrett was fully aware that the two fin-
gers of stone requiring blasting had been covered by this
time
The two supervisors- took the D-10 dozer back to the
site and Garrett ripped the area where Garrett had in-
structed Mertz not to disturb the ground until a survey
could be made to locate the exact spot for the crusher
wall (Tr 127) When Garrett finished, as Boyd credibly
testified, "I told [Garrett] to just leave it set to wait till
[Owner] Harley [Hall] come out and I would talk to him
about it" (Tr 522)
I find it obvious that if Garrett had assigned Mertz to
np the ground to the subgrade (as Garrett claimed, Tr
305-306, 314-315), Garrett would have noticed Mertz'
failure to do so and would have mentioned it to Mertz
the afternoon before Instead, Garrett admittedly reas-
signed him "to go up on top and 'doze some loose mate-
rial down between some fingers of rock"—as Garrett
had previously reassigned him on occasions when materi-
al, such as the stone fingers, were too hard to rip (Tr
321, 325-326, 344) I discredit Garrett's testimony about
the assignment As indicated above, Garrett appeared
willing to give any testimony that might help the Re-
spondent's cause
When Owner Hall arrived, he and Boyd went to the
area and Boyd did some more ripping with the D-10
dozer Then, as Boyd credibly testified, "I said it looked
like he was lying to us about not being able to rip it"
Hall said, "Well under the circumstances I
think we ought to let him go" Boyd agreed and said, "I
could take care of it" (Tr 523)
4 The summary discharge
About 3 45 that afternoon, December 6, Supervisor
Boyd drove Mertz back to the area and, as Mertz credi-
bly testified (Tr 127-128), said that
yesterday we had you up here ripping and you
told me you couldn't rip up this material I had
a dozer up here this afternoon and they didn't have
any problem ripping this material me and
Harley decided that you lied to us We are dismiss-
ing you
I told him the area that he pointed out to me was
an area I was told to leave alone I pointed to the
left and I said there is a little bit of a finger jutting
out from the loose material I pushed down here
That's the piece I couldn't rip He said no,
Harley and me discussed it and we feel you lied to
us We are dismissing you
Boyd admitted that Mertz mentioned that the area Boyd
had ripped was not the area he was supposed to rip, that
Boyd told him that Owner Hall and he had already
talked about it and decided to terminate Mertz for lying,
and that Boyd probably did not give him an opportunity
to try to get the decision changed (Tr 539-540)
After the discharge, Supervisor Boyd asked if employ-
ees on that job would write out statements because there
might be some problems with Mertz' discharge (Tr 216,
507, 561, 579)
5 Shifting testimony
In his December 28 pretrial affidavit (R Exh 8 pp 4
& 5), Owner Hall claimed
In my mind, the reason we decided to get rid of
Mertz was because he had lied that he could not rip
the material, that he had been observed sitting on
the D-10 when it was idle, and because other equip-
ment had been idled
I had no idea whatsoever that Mertz had been in-
volved in any union activity at the time he was ter-
minated Jeff [Garrett] had never identified Mertz as
having been involved in union activity
I note that when testifying at the trial, Hall did not deny
knowledge of Mertz' union activity He admitted that he
never talked to Mertz about his side of the story (Tr
454-455)
Owner Hall claimed at the trial, however, there were
other reasons for deciding to discharge Mertz besides the
December 5 incident He gave as reasons not only "they
felt they had been lied to," but "what had been evolving
and appeared to be evolving as far as job attitude, as far
as willingness to work, and considering the fact that I
had to get rid of people anyhow" (Tr 412) He also tes-
tified that "There had been some rumors around before
that I had discounted that he was becoming a little
bit argumentative on the job as far as taking instructions"
and "from the rumors I heard there was times when he
probably thought he knew a little bit more about how
things should be done [at times than] maybe anyone on
the job—and under the circumstances, right or wrong, I
made a decision" (Tr 423) I discredit the purported ad-
ditional reasons as afterthoughts
In the wntten statements that Supervisor Boyd re-
quested after Mertz' discharge, Blair, Omang, and Wisser
gave conflicting accounts Blair claimed (R Exh 9) that
Mertz was just sitting in his dozer reading a magazine
Omang , claimed Mertz got some sort of book out and
read for about 15 to 20 minutes (R Exh 11) Wisser
claimed that Mertz was reading a book with his feet
propped up on the dash of the dozer (R Exh 10)
At the trial, all three of them claimed that it was a
magazine By their demeanor on the stand, they ap-
peared less than candid I discredit the claims and credit
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mertz denial that he had either a book or a magazine
(Tr 108)
6 Discriminatory discharge
Before antiunion employees Blair Omang and Wisser
ate lunch in clear view of the union literature displayed
on the dashboard of Mertz jeep Supervisor Garrett ad
mittedly had told employees that if the Union came in,
We d all be out of a job When called as a defense wit
ness Omang testified that he would to a point strive to
make sure he did not lose his job (Tr 582) It is undo
puted that after giving a statement as requested by Su
pervisor Boyd (R Exh 10) Wisser commented to em
ployee Merle Jordan that Lonny Mertz got what he
had comm for trying to bring the union in and that
Wisser was afraid of the union because Owner Hall
would shut the outfit down and he would be out with
out a job (Tr 595)
After weighing all the evidence I infer that the three
employees did see the union literature that they feared
the loss of their jobs if Mertz were successful in organiz
mg the union and that by making the false complaint
against Mertz, they were striving to avoid losing their
jobs by assisting the Respondent in getting rid of Mertz
who had apparently replaced the laid off LeMieux as the
union organizer
Having found that Supervisor Garrett knew that their
complaint was inaccurate I find that he and Supervisor
Boyd—as well as Boyd and Owner Hall later—were car
lying out a charade to conceal their discriminatory mob
vation when they checked to determine if the D 10
dozer could rip an area where Garrett had mstructed
Mertz to leave at ground level I therefore find that the
Respondent s discharge of Mertz for lying about not
being able to rip the assigned area (with the fingers of
solid stone) was pretextual
In agreement with the General Counsel, I find that he
has made a prima facie showing sufficient to support the
inference that Mertz s union organizing was a motivating
factor in the Respondent s decision to discharge him
Having found that the purported reason for the dm
charge was a pretext I find that the Respondent has
failed to carry its burden to demonstrate that it would
have discharged operator Lonny Mertz in the absence of
his protected conduct Wright Line 251 NLRB 1083
1089 (1980)
Accordingly I find that the Respondent discnminaton
ly discharged Mertz in violation of Section 8(a)(3) and
(1) further showing its determination to keep the project
nonunion
CONCLUSIONS OF LAW
1 By discnminatonly laying off Phillip LeMieux on
November 23 and discharging Lonny Mertz on Decem
ber 6, 1988 for supporting the Union, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act
2 By coercively interrogating employees, threatening
discharge loss of employment, physical harm, closure of
the business, blacklisting, loss of previously promised
wage increase, and unspecified reprisals for supporting a
union, and creating the impression of surveillance of em
ployees union activities the Respondent violated Section
8(a)(1)
REMEDY
Having found that the Respondent has engaged in cer
tam unfair labor practices I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act
The Respondent having discnnmatonly laid off one
employee and discharged another, it must offer them re
instatement and make them whole for any loss of earn
ings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of rein
statement less any net intenm earnings, as prescribed in
F W Woolworth Co 90 NLRB 289 (1950) plus interest
as computed in New Horizons for the Retarded 283
NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed2
ORDER
The Respondent Harley Hall d/b/a Hall Construc
tion Lead South Dakota its officers agents successors
and assigns shall
1 Cease and desist from
(a) Laying off discharging or otherwise discnmmat
mg against any employee for supporting United Steel
workers of America AFL-CIO CLC or any other
union
(b) Coercively interrogating any employee about union
support or union activities
(c) Threatening any employee with discharge loss of
employment, physical harm, closure of business, black
listing loss of previously promised wage increase or an
unspecified reprisal for supporting a union
(d) Creating the impression of surveillance of employ
ees union activities
(e) 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
effectuate the policies of the Act
(a) Offer Phillip LeMieux and Lonny Mertz immediate
and full reinstatement to their former jobs or if those
jobs no longer exist to substantially equivalent positions
without prejudice to their semonty or any other rights
or pnvileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, m the manner
set forth in the remedy section of the decision
(b) Remove from its files any reference to the unlawful
layoff and discharge and notify each of the employees in
2 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
HALL CONSTRUCTION 825
writing that this has been done and that the layoff or dis-
charge will not be used against him in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social secunty payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facility in Lead, South Dakota, copies of
the attached notice marked "Appendix" 3 Copies of the
notice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable 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 Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found
r
3 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 Nation-
al 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"
APPENDIX
NP-rice To EMPLYEES
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
WE WILL NOT lay off, discharge, or otherwise dis-
criminate against any of you for supporting United Steel-
workers of Amenca, AFL-CIO, CLC or any other
union
WE WILL NOT coercively question you about your
union support or activities
WE WILL NOT threaten any of you with discharge, loss
of employment, physical harm, closure of business, black-
listing, loss of previously promised wage increase, or
other repnsal for supporting a union
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union activities
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 offer Phillip LeMieux and Lonny Mertz im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their semonty or any other
rights or pnvileges previously enjoyed and WE WILL
make them whole for any loss of earnings and other ben-
efits resulting from their discharge, less any net interim
earnings, plus interest
WE WILL notify each of them that we have removed
from our files any reference to his layoff or discharge
and that the layoff or discharge will not be used against
him in any way
HARLEY HALL, D/B/A HALL CONSTRUC-
TION