Hall ConstructionDownload PDFNational Labor Relations Board - Board DecisionsFeb 28, 1990297 N.L.R.B. 816 (N.L.R.B. 1990) Copy Citation 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 Copy with citationCopy as parenthetical citation