Howard P. Foley Co.

National Labor Relations Board - Board Decisions

Jun 3, 1977

229 N.L.R.B. 1167 (N.L.R.B. 1977)

HOWARD P. FOLEY CO.
The Howard P. Foley Company and Frank Carda-
mone, James T. Green, and Richard V. Green.
Cases 31-CA-5595, 31-CA-5681, and 31-CA-
5794
June 3, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On August 17, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs.
General Counsel also filed a brief in reply to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions 3 of the Administrative
Law Judge as modified herein.
The Administrative Law Judge based his Decision,
to a great extent, on his credibility resolutions. A
careful examination of that Decision and the entire
record clearly reveals that those credibility resolu-
tions were based on consideration of all the evidence,
and they are supported by the record. Our dissenting
colleague rejects the Administrative Law Judge's
credibility resolutions because in his view Respon-
dent's version of the evidence is more probable. We
submit that, even if our colleague's characterization
of the testimony is correct, which it is not, probabili-
ty has never been the standard utilized by the Board
I We hereby affirm the Administrative Law Judge's ruling with regard to
Respondent's motion to sever. We also affirm the Administrative Law
Judge's evidentiary rulings. Respondent sought to introduce evidence at the
hearing that subsequent to his discharge Frank Cardamone solicited funds
for a contract on the life of Respondent's project manager. Such evidence.
though properly excluded as being irrelevant to the issue of Cardamone's
discharge. may be relevant to the issue of his entitlement to reinstatement.
Accordingly, this issue should be considered during the compliance
proceedings. If, during those proceedings, relevant factual disputes become
evident, a hearing may be necessary.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
' The Administrative Law Judge inadvertently failed to conform his
conclusions of law with the findings detailed in his Decision. We shall
amend the conclusions of law to reflect these findings. We shall also amend
229 NLRB No. 160
in reviewing credibility determinations made by
Administrative Law Judges. If we were to adopt the
standard suggested by our colleague, the Board could
simply substitute its judgment for that of the
Administrative Law Judge, who has the opportunity
to observe the conduct and demeanor of witnesses.
Such a practice would undermine the factfinding
process utilized by the Board.
Although the Administrative Law Judge fully
detailed the evidence in this case, we are compelled
to respond to our colleague's mischaracterization of
the Decision.
With respect to the discharge of Cardamone,
Supervisor Bill Banta, who at the time of the hearing
was employed by Respondent as a foreman, credibly
testified4 that General Superintendent Wadlow told
him that the reason for terminating Cardamone was
"the man is a trouble maker. We have an opportunity
now to get rid of him." Banta testified that Wadlow
brought up the problem of Cardamone's filing a
grievance over his entitlement to "high time" pay,
and stated, "We don't want that kind of people on
the job." It is clear from the record that Cardamone
was regarded by his supervisors as a competent
employee. Union Steward Brownie credibly testified
that, just prior to the discharge, Project Manager
Addelman promised Brownie that Cardamone would
not be laid off and that Foreman Banta and General
Foreman Duran were pleased because in their view
Cardamone was a good employee.
The above-credited testimony clearly established
that Cardamone was terminated because he filed a
successful grievance. We are puzzled by our col-
league's reliance on discredited testimony, in the
absence of any valid reason for reversing the
Administrative Law Judge's credibility findings.
Furthermore, the discredited testimony amounts to
nothing more than a hodgepodge of shifting and
the recommended Order to provide an appropriate remedy for Respondent's
refusal to hire Richard Green at its LaSalle, Illinois, facility.
4 To the extent our dissenting colleague relies on assertions by the
General Counsel in the bnef filed with the Administrative Law Judge,
Member Walther is considering material outside the record and not before
the Board. Thus, Sec. 102.45(b) of the Board Rules and Regulations, Series
8. as amended, which defines the record, provides:
(b) The charge upon which the complaint was issued and any
amendments thereto, the complaint and any amendments thereto,
notice of hearing, answer and any amendments thereto, motions,
rulings, orders, the stenographic report of the heanng. stipulations,
exhibits, documentary evidence, and depositions, together with the
administrative law judge's decision and exceptions, and any cross-
exceptions or answering briefs as provided in section 102.46. shall
constitute the record in the case.
Furthermore, Sec. 102.42 of the Board Rules and Regulations, which
provides for oral argument and the filing of briefs, provides only that oral
argument at the close of the hearing shall be included in the stenographic
report of the hearing. Accordingly, for any such brief to be before the Board
it must be submitted to the Board directly along with exceptions and briefs.
1167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pretextual excuses. Thus, Wadlow claimed he decid-
ed to lay off Cardamone because he was unproduc-
tive, a recent hire, and from out of State, whereas
Addelman said he laid off Cardamone because he
was "spreading rumors" or was goofing off. Our
colleague explains these inconsistencies by stating
that "a variety of factors were at play." Our colleague
does not explain that statement, but it is clear from
the record that one of those factors involved
Cardamone's pursuing a grievance which constituted
activities protected by the Act. Accordingly, we agree
with the Administrative Law Judge that Cardamone
was discharged in violation of Section 8(a)(3) and (1)
of the Act.
The Green brothers were discharged the same day
that James Green circulated a petition for the Union.
Green's solicitations were open and the record
reveals that at least two supervisors knew of Green's
activities. Indeed, according to the testimony of
Chief Supervisor Tennyson, the petition was "com-
mon knowledge" throughout the quality control
department. The credited testimony indicates that,
when Addelman informed the Greens of their
discharges, he did not deny knowledge of the
petition. Our dissenting colleague chooses to rely on
notes taken by Addelman's secretary rather than the
credited evidence. Contrary to our colleague, there is
no indication that these notes were not considered by
the Administrative Law Judge. However, even
accepting our colleague's version of the termination
conversation, there exists overwhelming evidence
establishing knowledge and unlawful motive on the
part of Respondent.
When the Green brothers were rehired in August
1975, Addelman informed them that they would be
the last laid off. When he discharged them on
October 14, the day Green circulated the petition, he
repudiated that promise and refused to tell them why
he broke his word.5 At the hearing, Addelman gave
no precipitating reason for the discharges, but stated
the Greens had "negative attitudes." Furthermore,
both Greens were regarded as skilled and experi-
enced employees, and Addelman discharged them
without consulting their supervisors. Addelman
offered no valid explanation why these experienced
employees were terminated at the same time five
more people were added to the inspection depart-
ment, and this casts doubt on one of Addelman's
reasons, to wit, that the Greens were discharged
because of economic considerations.
However, in spite of Addelman's inconsistent and
evasive testimony, our dissenting colleague chooses
to credit Addelman. Our colleague makes much of
Addelman's professed "prounion" philosophy, which
s The Administrative Law Judge advanced this as an additional reason
for discrediting Addelman's testimony.
in his view belies any inference of antiunion motive
on Addelman's part. However, whatever Addelman's
views on unionism in general were, it is quite clear
that he opposed unionization of the quality depart-
ment. He told employee Fryckman that if another
company knew the employees had formed a union,
"it might not be that good for us to go to another
job." The record also reveals, and our dissenting
colleague agrees, that Addelman and Respondent's
counsel unlawfully interrogated Fryckman. Addel-
man also conducted a meeting with the quality
department employees, at which he told the employ-
ees that personally he had nothing against unions,
but, as a management representative, he had a
different obligation. He then proceeded to inform the
department employees that if they brought the Union
in, all benefits would probably stop and pay raises
would be held up. In view of the foregoing, we place
no reliance on the supposed fact that Addelman
carried a union card. We find, as did the Administra-
tive Law Judge, that Respondent violated Section
8(a)(3) and (1) by discharging James and Richard
Green.
Finally, the credited and uncontroverted testimony
establishes that Richard Green was not hired as
quality manager at Respondent's Chicago, Illinois,
facility because Respondent believed Green had filed
an unfair labor practice charge with the Board. The
project manager in the Chicago office invited Green
to come to Chicago at Respondent's expense to be
interviewed for a job. Green met with Respondent's
vice president, Patrokowski, who stated that he was
impressed with Green's credentials. Green was then
introduced to several employees at the plant as the
new quality manager. The next day, however,
Patrokowski told Green that "Addelman has charged
that your credentials are fake and that you had an
outstanding lawsuit against the Company and also
that you have participated in and have an NLRB
charge against the Company." Patrokowski told
Green he could not be hired with these conditions
hanging over his head. Respondent did not deny this
conversation took place. About 3 days later, a
meeting took place in California in which Green,
Addelman, and Addelman's supervisor, Lynch,
participated. The Administrative Law Judge credited
Green's testimony concerning this meeting, where
Lynch expressed concern about Green's filing a suit
against Respondent for backpay, and about the filing
of the unfair labor practice charge. Green informed
Lynch that his brother filed the charge, but Lynch
responded "your name is on that NLRB action. You
1168
HOWARD P. FOLEY CO.
have been named as a witness." Lynch did not
testify. 6
Therefore, the above incidents clearly establish that
Richard Green was discriminated against because
Respondent believed he had participated in the filing
of a charge with the National Labor Relations
Board. We agree with the Administrative Law Judge
that Respondent's conduct violated Section 8(a)(4)
and (1) of the Act.7
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. International Brotherhood of Electrical Work-
ers, Local 639, is a labor organization within the
meaning of the Act.
3. By interrogating employee Leo Fryckman as to
"whose side" he was on, Respondent engaged in
coercive conduct and thereby violated Section 8(a)(l)
of the Act.
4. By discharging Frank Cardamone, James
Green, and Richard Green because they engaged in
protected concerted activity, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
5. By refusing to hire Richard Green at its
LaSalle, Illinois, facility because of his alleged
involvement in filing a charge with the National
Labor Relations Board, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(l) and (4) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Howard P. Foley Company, Avila Beach,
California, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Interrogating employees by asking them whose
side they are on.
(b) Discharging employees for seeking to utilize a
grievance procedure set forth in the contract.
(c) Discharging or otherwise discriminating in
regard to hire or tenure of employment or any term
s Our dissenting claims that the Administrative Law Judge ignored
Addelman's testimony concerning the meeting. There is no basis for that
assertion, as the Administrative Law Judge noted that Addelman was
present at the meeting. Any denial of Lynch's statements should properly
come from Lynch, not Addelman.
7 General Services, Inc., 229 NLRB 940 (1977), and cases cited therein.
or condition of employment to encourage or discour-
age membership in any labor organization.
(d) Discriminating against employees because they
have filed charges with the National Labor Relations
Board.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the purposes
of the Act:
(a) Make Frank Cardamone, James Green, and
Richard Green whole for any loss of earnings they
may have suffered by reason of Respondent's
unlawful discrimination against them in the manner
set forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy," and rein-
state James Green to his former position or, if his
former position no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights or privileges.
(b) Provide Richard Green the position at Respon-
dent's facility in LaSalle, Illinois, which he would
have received but for Respondent's illegal discrimi-
nation against him.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Diablo Canyon,
Avila Beach, California, copies of the attached notice
marked "Appendix." 8 Copies of said notice, on
forms provided by the Regional Director for Region
31, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER WALTHER, dissenting:
Though I accept my colleagues' conclusion that
Respondent's interrogation of Leo Fryckman violat-
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed Section 8(a)(l) of the Act, I cannot agree with
their finding that the discharges of Frank Carda-
mone, James Green, and Richard Green violated
Section 8(a)(3) of the Act. Nor can I agree with their
finding that Respondent's refusal to hire Richard
Green as quality manager in Chicago violated
Section 8(a)(4) of the Act. I accordingly dissent.
It is uncontroverted that Frank Cardamone was
fired for valid reasons on June 20, 1975, and that he
subsequently filed grievances over his discharge and
entitlement to "high time" pay. Respondent, know-
ing that these grievances had been filed, nevertheless
rehired Cardamone on July 159 and passed up an
opportunity to get rid of him during a major layoff
which occurred on August 1. Thereafter, Cardamone
was observed goofing off by Project Manager
Addelman, Assistant Superintendent Montgomery,
and the subordinates of General Superintendent
Wadlow. He was released during the next major
layoff which occurred on August 22.
In view of these facts, my colleagues' conclusion
that Cardamone was fired for filing a high-time
grievance becomes inherently implausible. Two
questions immediately spring to mind: Why, if
Respondent were concerned about the filing of the
high-time grievance, did it rehire Cardamone after
the grievance had been filed? And why, if the high-
time grievance motivated Cardamone's discharge,
did Respondent wait until its second major layoff to
get rid of him?
The Administrative Law Judge did not dwell on
these questions or attempt to answer them. He
credited the testimony of Supervisor Bill Banta that
Wadlow, Montgomery, and Addelman all openly
admitted that Cardamone's participation in the high-
time grievance matter was the principal reason for
his discharge. Wadlow, Montgomery, and Addelman
denied Banta's version of what happened. Thus, it is
on Banta's critical testimony that my colleagues'
decision rests.10
Ordinarily, I would go along with the Administra-
tive Law Judge's resolutions as to credibility,
notwithstanding the improbability of the credited
testimony. However, a comparison of the Adminis-
trative Law Judge's Decision with the brief of the
General Counsel submitted to him shows that to a
9 Project Manager Addelman testified that it is not at all unusual for
Respondent to rehire someone who has been laid off due to inferior work
performance, and that the laid-off person's work performance often
improves after rehiring.
1' No other evidence is probative of the issue of Respondent's illegal
intent. Addelman's purported promise to Union Steward Brownie that
Cardamone would not be laid off certainly has no bearing on the issue. And
Montgomery's alleged statement to Brownie that Cardamone "brought it on
himself by these rumors he's been spreading" tends to prove legal rather
than illegal motivation.
" Contrary to what my colleagues suggest, I am not advocating that the
Board adopt probability as a standard for reviewing credibility determina-
startling degree the Administrative Law Judge's
Decision follows strictly the General Counsel's brief,
while at the same time giving little or no concern to
all other evidence or positions put forth. In the face
of this fact, which compels the conclusion that the
Administrative Law Judge has abdicated his function
of independently sifting and weighing the testimony
of record, my view is that the Board has no choice
but to evaluate that testimony as best it can in light
of the manifest probabilities." I would accordingly
credit, as tending to be most plausible, the testimony
of Addelman, Wadlow, and Montgomery that
Cardamone had been seen goofing off prior to the
August 22 layoff; that, in accordance with regular
procedures, Wadlow submitted Cardamone's name
on the layoff list (on the grounds that Cardamone
was nonproductive, a recent hire, and from out of
State) and that, on the afternoon of the August 22,
Addelman conferred with Montgomery and Wadlow
in Banta's presence and decided to let Cardamone go
for the above reasons.12
The fact that Cardamone's discharge may have
been motivated in part by other things, i.e., the
suspicion that he had been involved in circulating
rumors or Addelman's supposition that Cardamone
had approached him on the morning of August 22 in
order to weasel his way out of being laid off,
obviously does not render the discharge illegal. Any
supposed inconsistencies in the reasons advanced for
the discharge are accounted for by the fact a variety
of factors were at play.
I also take issue with my colleagues' finding that
the Green brothers were discharged for engaging in
union activity. My disagreement with their conclu-
sion stems from the fact that the record does not
adequately demonstrate that Addelman was pos-
sessed of an antiunion motive or knew of the Greens'
union activity.
As before, the surrounding facts render highly
improbable the conclusion my colleagues so willingly
endorse. In testimony conveniently ignored by the
Administrative Law Judge, Marvin David Cook,
international representative for the Union, stated
that in April 1975 Addelman himself put forward the
idea of unionizing the quality control department.
Virgil Tennyson, the quality manager (who, inciden-
tions made by Administrative Law Judges. But where the circumstances
convincingly demonstrate that the Administrative Law Judge has not relied
on his own observations of the conduct and demeanor of witnesses in
resolving testimonial conflicts, I do not believe that the Board should give
conclusive weight to the Administrative Law Judge's credibility resolutions.
12 An additional reason for crediting Addelman's, Montgomery's. and
Wadlow's testimony rather than Banta's is the fact that Banta, in his written
statement submitted to the Board, made no mention of the high-time
grievance matter as being a reason for Cardamone's discharge. The
Administrative Law Judge imporperly refused to admit into evidence
Bant;l's prior statement.
1170
HOWARD P. FOLEY CO.
tally, signed the petition), testified that Addelman
had no objection to unions. Additionally, James
Green testified that General Superintendent Wadlow
had assured him that he did not have to be
concerned about passing around the union petition
because Addelman was in favor of unions. These
facts, together with the facts that the plant's
production department was successfully unionized
and Addelman himself carried a union card, belie
any inference of antiunion motive on Addelman's
part.
Moreover, the record contains no direct evidence
that Addelman knew that the Greens had been
involved in union activity. No employee testified that
he or she had informed Addelman about the union
petition, and several employees stated that they had
not informed Addelman. Virgil Tennyson, who
testified that the petition was "common knowledge"
within the quality control department, admitted that
he had not informed Addelman of the petition.
The Administrative Law Judge chose to infer
knowledge on the slim evidence that, when asked by
one of the Greens whether the discharge was because
of the petition, Addelman responded, "No, that is
not the reason, but I don't want to go into it right
now." Yet notes taken by Addelman's secretary at
the time (which surely constitute the most reliable
evidence) show Addelman responding, "I don't know
anything about that."
Rather than rely on the judgment of the Adminis-
trative Law Judge who failed to weigh competing
testimony, I would credit Addelman's version of the
discharge that the Greens were fired because of their
continuing bad attitude and because of economic
considerations. The Greens had been demoted from
their supervisory positions and were probably and
understandably resentful. In the absence of any
persuasive testimony establishing Respondent's
union animus or knowledge of the Greens' union
activity, I accept, as most in keeping with the
surrounding facts, the entirely credible story that
they were fired because of their bad attitude.
Finally, I cannot accept my colleagues' conclusion
that the Company refused to hire Richard Green as
quality manager at its Chicago facility because
Richard Green's brother had filed an NLRB charge.
The Company's California operation fired Richard
Green from the job of quality manager because of his
inability to handle the job. I think it strains credulity
to believe that Richard Green would have been hired
as quality manager in Chicago-the same position
from which he had previously been fired-had he not
been linked with his brother's NLRB charge.
Whatever one's view of the facts (and here again the
Administrative Law Judge fails to sift contradictory
evidence),' 3 it cannot reasonably be said that
Richard Green would have been hired but for his
tenuous participation in the bringing of an NLRB
charge. I accordingly would not find that Respon-
dent violated Section 8(aX4) of the Act.
13 Following the example set forth in the General Counsel's brief, the
Administrative Law Judge ignored testimony by Addelman that, at the
meeting in Avila Beach, California, he explicitly announced that the NLRB
charge was not to be a factor in the deliberations concerning Richard
Green's fitness for the job.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we participated and had a
chance to give evidence, it has been found that we
have violated the National Labor Relations Act, as
amended, and we have been ordered to post this
notice and to carry out its terms.
The National Labor Relations Act gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such practices.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT interrogate employees by asking
them whose side they are on.
WE WILL NOT discharge employees for seeking
to use a grievance procedure set forth in the
contract.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for supporting a union.
WE WILL NOT discriminate against employees
because they have filed charges with the National
Labor Relations Board.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in any of your rights
set forth above, which are guaranteed by the
National Labor Relations Act.
WE WILL make Frank Cardamone, James
Green, and Richard Green whole for any loss of
earnings they may have suffered by reason of our
unlawful discrimination against them, and will
reinstate James Green to his former or to a
substantially equivalent position.
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL also provide Richard Green the
position at our facility in LaSalle, Illinois, which
he would have received were it not for our
unlawful discrimination against him.
THE HOWARD P. FOLEY
COMPANY
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
was heard at San Luis Obispo, California, on February 26
and 27, 1976.1 Charges were filed by three individuals as
follows: Frank Cardamone filed the charge in Case 31-
CA-5595 on September 15 on which complaint issued on
October 22; James Green filed the charge in Case 31-CA-
5681 on October 28 on which an amended complaint
issued December 15; Richard Green filed the charge in
Case 31-CA-5794 on which a second amended complaint
issued on February 9, 1976. The second amended com-
plaint alleges that Respondent violated Section 8(aXl) and
(3) of the National Labor Relations Act, as amended, with
respect to all three Charging Parties and violated Section
8(a)(4) with respect to Cardamone and Richard Green.
Issues
(I) Did Respondent violate Section 8(aXl) and (3) of the
Act because Cardamone engaged in protected concerted
activities and was named as a discriminatee in a charge
filed with the Board?
(2) Did Respondent violate Section 8(a)(1) and (3) of the
Act by discharging the Green brothers because they
engaged in protected concerted activity, or Respondent
believed they had engaged in such activity?
(3) Did Respondent prevent Richard Green from
securing employment with the Chicago, Illinois, office of
Respondent because Richard Green was allegedly involved
in a Board investigation, thus violating Section 8(a)4) of
the Act?
(4) Did Respondent coercively interrogate an employee
concerning the contents of the employees' affidavit made
to a Board agent, thus violating Section 8(a)(1) of the Act?
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an electrical contractor with its principal
place of business located in Washington, D.C. It is engaged
in the construction and installation of electrical systems in
t All dates refer to 1975 unless otherwise stated.
2 Respondent filed a number of motions to sever the consolidated
complaints on the ground that all witnesses would have to be brought from
the jobsite of the nuclear power plant, which is located about 20 miles from
the hearing room and on the ground that the supervisors, who oversee the
the building and construction industry. Respondent annu-
ally sells goods and services valued in excess of $50,000
directly to customers located outside the District of
Columbia. Respondent admits, and I find, that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The International Brotherhood of Electrical Workers,
Local 639, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Procedural Issues
Prior to the opening of the hearing herein, Respondent
moved to sever the consolidated complaints. Respondent
had previously filed such motions with the General
Counsel's office and Respondent renewed its motion to
sever the consolidated cases which were referred to me for
ruling. I denied the motions on the ground that they lacked
merit.2
Background
The Company has been operating under a cost-plus
contract with Pacific Gas and Electric Company for the
construction and installation of electrical systems located
at the Diablo Canyon nuclear project near Avila Beach,
California. The project manager of this entire operation is
LaMoyne Addelman, who operates from the field office
located at the site of the project. Respondent employs
approximately 500-600 employees, divided into two
groups: production and quality control. The production
department employs more than 70 percent of the work
force made up mainly of journeymen electricians, many of
whom occupy supervisory positions. This department is
headed by the general superintendent, Reginald C. Wad-
low, whose assistant is Floyd Montgomery. He, in turn, is
assisted by other assistant superintendents who covered
functional areas. Primarily, the work is performed by crews
of up to 10journeymen who are directed by a foreman. For
every four foremen, there is a general foreman who, in turn,
is responsible to the designated assistant superintendent.
This hierarchy implements work assignments and person-
nel actions.
The quality control department, headed by an office
support staff, makes up the balance of the employees. The
head of this department, known as the quality control
manager, is Virgil Tennyson, who has occupied this
position since mid-July 1975. A large portion of this
department is made up of field inspectors who perform
inspection work throughout the construction area. These
employees are supervised by Chief Inspector Joe Strait,
who, in turn, is supervised by Lawrence Souza, who is
known as the quality control supervisor.
work of the entire work force, would also have to be brought to the hearing
room as witnesses. Respondent contends that, unless the cases are severed,
there would not be adequate supervision over the jobsite as required by
Respondent's contract with Pacific Gas and Electric Company.
1172
HOWARD P. FOLEY CO.
The production department is composed solely of union
employees, most of whom are members of the Internation-
al Brotherhood of Electrical Workers (IBEW), Local 639,
which has jurisdiction over the construction site and is
responsible for referring employees to the project upon
request by Respondent. Many of the employees are
members of locals throughout the country, a number being
members of an IBEW local located in Las Vegas, Nevada.
Respondent and Local 639 are parties to a collective-
bargaining agreement covering the production employees
through which grievances are presented to a labor
management committee for determination. Absent resolu-
tion, disputes are heard by an interim committee that
appears to be authorized to effectuate settlement of such
disputes. The quality control department is nonunion.
A. The Discharge of Cardamone
Cardamone, who is a journeyman electrician and a
member of IBEW Local 357 headquartered in Las Vegas,
Nevada, was first hired by Respondent on April 17, and
worked until June 20. He was on the crew of Foreman Ron
Hannah. During the time he was on Hannah's crew,
Cardamone and a fellow employee, Anthony DeJohn, were
assigned to perform work they felt qualified as "high time,"
which would entitle them to a higher rate of pay. Hannah
disagreed with their evaluation of this job. The men
discussed the problem with the IBEW shop steward, Bill
Brownie, whose job it was to act as the Union's representa-
tive, in which capacity he investigates problems that come
up on the job. Cardamone and DeJohn decided to file a
grievance regarding the high-time pay. About a day or two
after filing the grievance, both Cardamone and DeJohn
were fired by Respondent. They filed a second grievance
about their discharge.
On July 2, a labor management meeting was held in the
union hall of Local 639 at which both grievances filed by
Cardamone and DeJohn were heard. The labor manage-
ment committee upheld the decision to terminate both
men, but it was deadlocked on the high-time grievance. On
July 7, a charge was filed by Cardamone and DeJohn with
the National Labor Relations Board alleging Respondent
violated Section 8(aX1) and (3) of the Act by their
discharge. This case, Case 31-CA-5439, was dismissed by
the Board on July 29 due to insufficient evidence. This
decision was appealed, but it was sustained by the General
Counsel on July 29. On July 15, Cardamone was rehired
prior to any resolution of either the NLRB charge or the
labor management determination of the high-time griev-
ance. According to Project Manager Addelman, Carda-
mone was put back on Respondent's payroll because
Addelman felt Cardamone "had learned his lesson."
At this point, Cardamone was assigned as a wirepuller in
a crew for which the foreman was Bill Banta. Cardamone
worked on Banta's crew up until the day of his second
discharge, which took place on August 22. It was testified
by both Cardamone and his foreman, Banta, that no
supervisor made any complaint concerning Cardamone's
performance on the job. This fact was confirmed by the
testimony of Addelman, Montgomery, and Wadlow that
Cardamone was never warned that he was nonproductive
or that he goofed off while he was supposed to be working.
Ultimately, the interim committee upheld the termina-
tion of both DeJohn and Cardamone, but also decided to
award both grievants high-time pay. The Respondent's
position before the interim committee was presented by
Addelman, while the contention of the grievants was
argued by Cardamone. For his part, the settlement
concerning the high-time matter resulted in the payment to
Cardamone of a check of $168.
I. The events of August 21 and 22 which lead to
the discharge of Cardamone
At the end of the workday on August 21, Addelman
approached Union Steward Bill Brownie and told him he
had heard rumors allegedly started by Cardamone con-
cerning the abuse of coffeebreaks, and that in the event of
termination the men could be reinstated through the use of
the labor management committee. Brownie, at the request
of Addelman, said he would do what he could to straighten
the matter out. On the morning of August 22, Brownie
questioned Cardamone with particular reference to the
source of rumors being attributed to Cardamone. Carda-
mone denied having spread any rumors, and Cardamone
said he wanted to speak to Addelman to set the rumors as
to his involvement at an end. At this point, Cardamone
denied the rumors directly to Addelman in his office. Both
Brownie and Cardamone stated they knew nothing about
any layoffs being planned by the Company for that day,
August 22. After the explanation made to Addelman, he
said he was satisfied with Cardamone's denial of the
circulation of rumors and that the "air was now clear."
Both Brownie and Cardamone left Addelman's office and
returned to their respective positions. A short time later,
Brownie, in the course of his duties as union steward, was
told that there would be a layoff of 16 men that day.
According to the unequivocal testimony of Brownie, he
was assured by Addelman that Cardamone would not be
laid off. In testimony later given by Addelman, Addelman
denied to Brownie that he had said that Cardamone would
not be laid off.
According to the testimony of Brownie, he said that both
Banta and his General Foreman Duron asked him what
the meeting in Addelman's office with Cardamone was all
about. He explained what had occurred, and stated that
Addelman was satisfied that the air had been cleared about
the subject of rumors; Addelman also said there was going
to be a 16-man layoff that day, but Cardamone would not
be on it. Both men said they were glad because Cardamone
was a good man. Later that day, while Brownie was in
Addelman's office on other business, he saw a group of
layoff slips and the top name was Frank Cardamone.
Brownie told Addelman he thought Cardamone wasn't
being laid off, to which Addelman replied, "Brownie, I did
not tell you that." Brownie was upset. When he got outside,
Montgomery followed behind him, and Brownie said,
"Floyd, I think it's pretty damn dirty what we're doing."
Montgomery said, "Frank Cardamone brought it on
himself by these rumors he's been spreading" to which
Brownie rejoined, "God damn, we just got this thing
straightened out. I thought we had the air cleared this
morning and now you are running him off." Montgomery
said nothing further and walked off.
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Banta heard that Cardamone was going to be laid
off, he went to see Addelman in his office to request that
the layoff of Cardamone be reconsidered. When he got
there he found Addelman and Montgomery, who were
later joined by Wadlow. Wadlow stated that Cardamone
"had been a troublemaker on the job and recounted the
problem Respondent had had with the respect to the high
time grievance and other matters." The General Counsel's
brief states, "that apparently there was little or no mention
of the alleged rumors that Cardamone was supposed to
have been spreading." The reason for Banta going to bat
for Cardamone was because earlier in his testimony Banta
had strongly expressed his opinion that Cardamone was
one of the best employees that he had. Frequently Banta
had designated Cardamone to act as a leadman in
completing the assignments that were passed on to Banta
from his general foreman, Larry Duron.
Banta, an electrician of 20 years' experience, testified
that Cardamone was one of the best electricians that he
had ever worked with. Cardamone had been on his crew
and had been under the direct supervision of Banta. Banta
personally had no complaints with his work or his attitude.
Banta and Cardamone both testified that no one made any
complaint concerning Cardamone nor did Banta hear any
of the rumors that allegedly had been circulated by
Cardamone.
When Banta informed Cardamone that he was to be laid
off, Cardamone asked Banta one question:
Q. What again was that please?
A. He asked me, it was a brief thing when I walked
out and told him that he was going to be laid off, he
said, "Does it involve the past infraction out there on
this job, the high time?" At which Banta told him
"Yes."
Later, on cross-examination, Banta was asked what some
of the infractions were. Banta replied, "They all reverted to
the same thing. There was only one infraction and that was
something that was involved in the high time issue."
Banta continued, "I was not aware originally that the
man had been previously on the job. So on this particular
day when the problem came up, and any time that I was
ever aware that there was a high time problem or any other
type of problem involving Cardamone was at different
times during the course of the discussion that afternoon. It
was brought up by Mr. Montgomery, Mr. Wadlow and Mr.
Addelman, that there had been some problems of a nature
that again, which all reverted back to the high time issue
and then later it got involved in another foreman or general
foreman of some discussion that Cardamone was having
with this gentleman and somebody spotted it and they said
he was goofing off and he was apparently terminated from
the job."
Later, on recross-examination, Banta was asked how
many hours on the average men put in actually working.
"Based on an 8-hour day, Banta said a man could put in,
for instance, about 6-1/2 hours productive hours in a day."
Respondent's witness, Ron Hannah, had also been
Cardamone's foreman for a period of time and, when asked
what kind of job Cardamone did while working under him,
said his work was satisfactory when he wanted to work, but
he continually goofed off. Pressed for specific examples,
Hannah said he spoke to Cardamone on three separate
occasions over a 6-week period. This testimony was not
impressive, since it was uncontroverted that a man usually
put in 6-1/2 hours of productive time in a normal 8-hour
day and, if there were three instances over a period of 6
weeks, this would hardly constitute "continually goofing
off."
Banta was told by his general foreman, Duron, that
Cardamone was being laid off. Banta spoke to Wadlow,
who was the superintendent over the whole project, in an
effort to try to put a stop to Mr. Cardamone's being laid
off. Banta testified Wadlow said, "No, there is no way. The
man is a troublemaker. We had an opportunity to get rid of
him and I want him off the job." A discussion ensued and
in answer to the General Counsel's question of what was
said, Banta replied:
Well, the only thing that was really, that was specifical-
ly brought up was the fact that they had some problems
up there that was of a nature of high time and that had
happened some time ago on the job and apparently
they had gone to a later management meeting of which
the meeting lasted until some wee hour in the morning,
5 o'clock or something, and as I recall, and he just said
"We don't want that kind of people on the job."
Wadlow said nothing could be done about the layoff, but
offered Banta a chance to discuss the matter further with
the manager of the project. Wadlow and Banta met with
Montgomery and Addelman. Again, the high-time issue
and the labor management committee problem, referred to
above, came up. Banta Wadlow testified that he could
determine that an employee was not working based on
personal observation plus consultation with subordinates.
Wadlow then cited that several times he was supposed to
be working in a certain area and he was seen in other areas.
I asked if Wadlow had personally seen the incident he was
describing. After having previously stated that his judg-
ment was based on personal observation, he then admitted
that he had not seen Cardamone away from his duty
station, but, in answer to my question, he admitted he had
not personally seen the described incident but that one of
his subordinates had seen it. This inconsistent prior
statement was then followed by Wadlow's additional
remark. He admitted that, among 600 men it is not possible
to remember everyone and for this reason he keeps notes of
the hat numbers of men who are not working. When asked
why Cardamone was terminated, Wadlow gave three
different reasons: (1) his lack of production; (2) the other
was that he had just been lately hired; and (3) the last one
was that he was from out of state.
It should be noted in passing that when Wadlow stated
that he had not previously personally seen Cardamone
goofing off, he later testified that this information had been
reported to him by subordinates. He did not name the
subordinates. His testimony was both vague and inconsis-
tent.
Addelman testified that he had observed that Carda-
mone was not being productive. He saw a man whose back
was to him, standing and talking to the employee in charge
of the toolroom. Addelman then went out into the field,
1174
HOWARD P. FOLEY CO.
was gone about 20 minutes and, when he returned to his
office, he again noticed the same man still standing in the
toolroom area. This time Addelman took down his hat
number which is on the back of the hat. He had the
number checked and found that the man was Cardamone.
Addelman later went back to the toolroom and this time
Cardamone was no longer there. Upon inquiry, Addelman
was told that Cardamone had not checked any tools either
in or out of the toolroom. Addelman also testified that
there were rumors coming from various people that
Cardamone was claiming that you could violate the
coffeebreak and get away with it because you could be
reinstated by the labor management committee. Addelman
then admitted that he did not know the names of the
individuals who allegedly made such statements. In this
connection, Addelman at first stated he never accused
Cardamone of circulating these rumors. In his very next
sentence, when the Union Steward Brownie came to
Addelman's window, he told Brownie that Cardamone was
possibly spreading rumors around the project but in the
next breath said he had not accused Cardamone of this
activity. If he was not pointing an accusation against
Cardamone it is difficult to understand why he mentioned
his name in this connection.
Each of the supervisors, Hannah, Montgomery, and
Wadlow, and Project Manager Addelman testified that
Cardamone goofed off. In large part these men did not
point to particular instances and when they did give
examples their testimony was either insubstantial or vague.
I would characterize their statements concerning goofing
off as being generalized and not tied into specific instances
supported by credible probative evidence. I would not say
that he never was seen not working. In the nature of the job
there are times when wire pullers have to wait until the
wires reach their station. I credit Foreman Banta's
uncontradicted testimony that in an average 8-hour
working day the men accomplished productive work for
approximately 6-1/2 hours. Out of a working force of
about 600 men, I cannot believe that Cardamone was
conspicuous for standing around or visiting other working
areas where he had no assignments. I have previously
credited the testimony of Banta who testified that Carda-
mone was one of the best employees he had seen in over 20
years' experience doing electrical work. Banta's day-to-day
overall job evaluation has persuaded me that Cardamone
was an excellent employee who did his job effectively. I
cannot believe if Cardamone was a chronic timewaster that
over a period of a month while he worked directly under
Banta that this type of dereliction of duty was not known
to Banta.
The only purpose Brownie and Cardamone asked for a
meeting with Addelman was to permit Cardamone to
explain that he had nothing to do with the circulation of
rumors. Addelman expressed himself as being satisfied
with Cardamone's denial. Nevertheless, Brownie credibly
testified that Montgomery told him Cardamone was fired
for spreading rumors.
2. Testimony of LaMoyne Addelman
At the first meeting in Addelman's office, on the day
Cardamone was discharged after the discussion concerning
the alleged circulation of rumors was completed, Brownie
asked Addelman if Cardamone was scheduled to be laid
off. According to Brownie, whom I credit, he was assured
by Addelman that Cardamone was not slated for immedi-
ate layoff. Addelman denied he told Brownie that Carda-
mone would not be laid off. He further testified that the
reason Cardamone requested the meeting with Addelman
was to find out if Cardamone was going to be laid off. I do
not credit Addelman. The record shows that neither
Brownie nor Cardamone had any inkling that there were to
be any layoffs that day. Their only purpose in requesting
the meeting was to dispose of the matter of rumors ascribed
to Cardamone.
When Addelman was queried about whether Cardamone
was to be laid off, Addelman replied, "Contrary to prior
evidence they wanted to know whether Cardamone was
going to be on the layoff. I had already had his name on
my desk. I turned the paper over . . . and I purposely
would not acknowledge whether he was or was not because
if they knew too far ahead that would cause a problem on
the job."
Further, according to Addelman, the reason Cardamone
and Brownie came to Addelman's office was to see if he
was soon to be laid off and to "justify that he was not
involved in the rumors." Addelman continued, "I would
assume that he was aware of his lack of productivity the
day before, because the guy in the toolroom, Cadinea, I
believe is his name, is a very close friend, I found out later,
of Mr. Cardamone. He is also out of the Las Vegas local [of
which Cardamone was also a member]." Addelman went
on that "when he asked the questions of the man in the
toolroom, he is sure that Cardamone was made aware that
the project manager was investigating why he was there for
that length of time doing nothing and that is why I
suspected he was in the next morning, really to find out
whether or not he was going to be laid off."
It can be seen from the testimony of Addelman that he
did not go over openly to ask Cardamone why he was at
the toolroom. He based his conclusion on an assumption
and on his suspicion. Further, I credit Brownie's statement
that he felt he had been assured that Cardamone would not
be laid off. When he found out that Cardamone was going
to be laid off, despite what he considered to be a clear
assurance from Addelman that this would not take place
that day, Brownie was upset and told Montgomery that he
was treated dirty and made to look like a fool. Brownie
testified candidly and I am persuaded that he did not feign
his anger to Montgomery at what was being done to
Cardamone.
Addelman's testimony is threaded through with impor-
tant inconsistencies. He began his testimony by explaining
he rehired Cardamone to give him another chance since he
had been out of work about 10 days between his last
discharge and his being rehired and had probably "learned
his lesson." Later in his testimony he said, "We are not
going through the thing of giving the guy a second chance,
because if 600 men know this, they can screw off until they
get caught for the first time and then they can get a second
chance, and I had been through that experience before in
prior jobs. It just doesn't work."
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The whole structure of Addelman's explanation of his
reason for terminating Cardamone was based on a
suspicion that Cardamone's visit to Addelman's office on
August 22 at 8 a.m. was prompted because he was trying to
head off his firing for lack of productivity due to the
toolroom incident. I credit both Cardamone and Brownie
that neither of them had any knowledge that a layoff was
due to take place that day. The only person who had this
knowledge was Addelman himself, who had a covered-up
list on his desk which contained a group of names of men
to be laid off. Addelman characterized Cardamone's
behavior during the meeting of August 22 as "overly nice"
in order to curry favor and thus to head off a layoff. No
one knew anything about a layoff at that time except
Addelman. Montgomery told Brownie that Cardamone
was laid off because he was spreading rumors. Wadlow
said that Cardamone was a troublemaker and the Compa-
ny had an opportunity to get rid of him. I credit both Banta
and Brownie that Cardamone pressed his grievance on the
high-time issue and argued the case before the interim
committee until 5 a.m. Respondent offered different and
shifting defenses for the discharge. From this welter of
conflicting testimony, I conclude that the reasons given by
Respondent were pretextual. The real reason was due to
Cardamone's pursuing his and DeJohn's grievance which
constituted concerted activities protected by the Act. Thus,
I find that Cardamone was discharged in violation of
Section 8(a)(3) and (I) of the Act.
B. The Discharge of James Green and Richard
Green
The Greens are brothers who were both employed in the
quality control department from early in 1974 until the
date of their discharge which occurred on October 14,
1975. Prior to their discharge, both Greens had been
demoted in mid-July 1975 from supervisory positions to
positions as field inspectors which is the lowest category of
employee in the quality department. They were asked by
Addelman to take 2-week vacations to think over whether
they wanted to return to the Company in a demoted status.
They both decided that they would stay with the Company
as field inspectors and took vacations and upon their
return in early August 1975 both Greens were assured by
Addelman that they would be "the last two to be laid off in
the event of a layoff" in that department. After their return
to work, both men were employed as field inspectors under
the supervision of the chief inspector, Joe Strait, and the
quality control supervisor, Larry Souza. Respondent does
not claim that there is any evidence to show that it had any
complaints about their work. Nor is there any indication in
the record to show that Addelman at any time approached
either of the Green brothers or their supervisors concerning
negative reports about their work.
On October 13 James Green discussed with the union
representative of IBEW Local 639 the possibility of having
a union represent the employees of the quality control
department. Green was told that the first thing to do was to
find out whether or not there was enough interest in this
3 The lunchroom is directly adjacent to the offices of Wadlow and
Montgomery.
department to warrant such a move. The union representa-
tive suggested that Green secure signatures on a petition
which was designed to find out whether or not an
organizational and informational meeting might be held by
the union representative for the purpose of getting the
necessary people to start a union. On the next day, October
14, starting about 9 a.m., James Green called the union
representative again after receiving permission from his
supervisor to make the call, and told him that he felt he
could get the support of at least one-third of the
department. The union representative told him to draw up
a petition, circulate it among the people, and obtain
signatures in order that he could demonstrate to the Union
that in fact there was considerable support within the
department for such an organizational effort. Green then
told some inspectors that he wished to see them at
lunchtime in the field office where the field inspectors
normally take their lunch break.3
During the lunch break, James Green started a discus-
sion among the people present in the field office with
respect to the possibility of starting a union. Some debate
then took place and Green drew up a makeshift petition
which he signed himself and proceeded to have the other
men in the office also sign. The list at this time contained
approximately 10 names, and James Green then took the
petition from the field office and proceeded to the main
office about 12 noon where he sought to obtain additional
signatures. He encountered some reluctance on the part of
the employees to sign the list and so he went to the then
chief supervisor, Tennyson, and explained to Tennyson
what he was doing. Tennyson said that he was in
agreement and he, in addition to Souza, then signed the
petition. After that Green had little difficulty in obtaining
more signatures from the employees who were working in
the main office. According to the testimony of Tennyson,
the petition was "common knowledge" throughout the
quality control department.
By this time the lunch period was over and Richard
Green, who took no active part in the organizational effort,
returned to his work. His job took him to a work area
which was in one of the far reaches of the power plant
building and he had no discussion with anyone concerning
the petition for the rest of the afternoon.
James and Richard Green were summoned to Addel-
man's office at the end of the workday on October 14.
When they arrived at the office, Addelman informed both
men that they were being laid off at that time. A
conversation then took place and though accounts are
somewhat different as to what was actually said, there is no
doubt that one of the topics was that Addelman was not
going to give them a reason why they were being
terminated at that time. At this point, both of the Green
brothers questioned Addelman concerning his earlier
statement in August to the effect that they would be the
last laid off. According to a transcript made by Addelman's
secretary, Miss Fournier, which was taken at the meeting,
Addelman said: "Well, I did say that but things being as
they are, you two are on the layoff and I'd rather not go
into the reasons now."
1176
HOWARD P. FOLEY CO.
With respect to giving the employees a reason for their
sudden discharge, the record shows that one of the Green
brothers said, "Is it because of the petition?" to which
Addelman answered, "No, that is not the reason, but I
don't want to go into it right now."
It has been the position of Respondent throughout the
matter involving the Green brothers that Addelman did
not know anything about the circulation of the petition or
so he claims. In view of this contention, it is difficult to
understand how in answer to the question, "Is it because of
the petition?" that Addelman answered, "No, that is not
the reason, but I don't want to go into it right now." If
Addelman knew nothing about the petition and he was
hearing about this for the first time, it would seem more
reasonable for him to have replied to the question asked by
the Greens by stating, "What petition, I don't know what
you're talking about." It would seem from the answer given
by Addelman that he knew about the petition but simply
didn't want to discuss it at that time.
In this connection, it should be noted that Addelman
was letting go of two of his most experienced inspectors,
without consulting their supervisors and, more incredibly,
within a month, he had added five more people to the
inspection department. No explanation was offered as to
why the Green brothers were not recalled when these
additional inspectors were hired.
After this discussion in Addelman's office, both James
and Richard Green went into Tennyson's office where they
asked both Tennyson and Souza if they knew the reason
for the layoff. Both Tennyson and Souza stated that neither
had any idea as to why the Green brothers had been laid
off.
A couple of days after the discharge of the Green
brothers took place, another employee by the name of
Fryckman had the petition in his possession and he was
going around getting additional signatures. He met
Addelman who asked him what he was doing. Fryckman
said he was getting additional signatures on the petition.
Addelman asked to see the petition, looked at it, and said
something to the effect that he was not personally opposed
to labor unions and, in fact, carried a card showing that he
was still a member of the IBEW. However, he pointed out
to Fryckman that as a management representative he had
to have a different attitude. Addelman then said something
to the effect that if Fryckman went to another job and if it
were known that the men were union men at Diablo, and if
it were further known that a union had been formed there,
that it might not be good for the men to try to get another
job. The new company might look down on the men if it
was known they were members of a union.
Approximately a month after this conversation, which
took place in the middle of October 1975, there was a
meeting called of all the employees, at which time
Addelman spoke to them about the union situation in the
quality control department. At the opening of this meeting,
Addelman stated that some people thought that the
discharge of the Green brothers had something to do with
the organizational efforts of the Green brothers but this
was not so. After first explaining that he had nothing
against unions and in fact still carried a union card, he then
described information concerning the negatives of union
membership. For example he stated, "If we went union, all
benefits would probably stop, your pay raises would be at a
hold until you got your contract in ... ." The comments
addressed to the group of his employees were mainly
directed at the negative aspects of unionization.
It is implausible to accept Addelman's saying that he
knew nothing about James Green's circulation of a petition
containing the names of certain employees in quality
control prior to discharging both of the Green brothers.
James Green made no effort to hide what he was doing.
There was nothing surreptitious about his conduct. He
openly secured the signatures of the employees and he took
his petition directly into the office of Supervisors Souza
and Tennyson. He not only explained his mission to the
supervisors, but they both signed the petition. From this
unrefuted testimony in the record, it is clear that James
Green's circulation of the union petition was in fact
"common knowledge" throughout the quality control
department.
There is the further fact that both Green brothers were
regarded as skilled and experienced employees. Addelman
had testified that it cost his Company approximately
$35,000 to train an efficient employee. Under these
circumstances it is difficult to understand what triggered
these discharges at the time they took place. The fact that
they were discharged on the very day the petition was
circulated makes the timing suspicious to say the least.
Note also that when the Greens were rehired Addelman
told them they would not be laid off. His repudiation of his
commitment plus his refusal to tell them why he broke his
word is an additional reason for discrediting his testimony.
Further doubt is cast upon his credibility in the way he
treated Richard Green. Even if James Green was the
activist in the circulation of the petition, there is no
evidence to show why Richard was selected for discharge
on the same day. The record is barren of any evidence
linking Richard to the petition apart from the fact that he
signed it. Many other employees also signed it and nothing
happened to them. The further fact that no valid reason for
choosing them for discharge was given raises additional
doubts as to the true motive for their discharge.
During the exit interview both Greens asked the reason
for their discharge. Addelman's response was, "I am not
going to answer anything in regards to this for I don't want
to be quoted in front of witnesses." Earlier when Tennyson,
the Greens' supervisor, asked why they were discharged,
Addelman told him "I don't want any questions asked
about it, and I am busy right now, and I don't really have
time to discuss it with you."
It would be unrealistic under the circumstances to accept
Respondent's contention that Addelman knew nothing
about James Green's circulation of the petition. In the face
of the good work both men had done for a year and a half,
the fact that they were suddenly discharged without a
precipitating incident on the very day (October 14) when
James Green circulated the petition makes Respondent's
explanation pretextual. At another point in the record
Addelman had said another reason for discharging the
Greens was because he would not tolerate their "negative
attitude." When asked to explain what he meant, he said
that on two occasions when he passed James Green on the
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
project he asked, in a friendly way, how things were going
and he was ignored by James Green. It is reasonable to
expect that an employee who had been demoted from a
supervisory position and consequently suffered a loss of
prestige and earnings would hardly be expected to be
kindly disposed to Addelman.
Thus it can be seen that Addelman's shifting reasons for
discharging James and Richard Green, his demeanor, and
his vague and inconsistent testimony marks him as an
incredible witness. I give no credence to Addelman and
conclude his so-called reasons for the discharges were
pretextual.
Based on the record as a whole, I conclude and find that
the Green brothers were discharged because James was
engaged in protected concerted activities in violation of
Section 8(a)(1) and (3) of the Act.
C. The Interrogation of Fryckman
About 2 weeks before the hearing in the instant case, Leo
Fryckman, who is a field inspector at Respondent's Diablo
Canyon project, was called into Addelman's office to speak
to Respondent's counsel, Robert Mott. He was questioned
by both Addelman and Mott as to the contents of an
affidavit Fryckman gave to a Board agent. Fryckman was
reluctant to allow them to see the written statement
without first clearing with the NLRB agent. At this point,
Mott asked Fryckman, "Whose side are you on?" During
the same conversation, Mott again repeated the above-
quoted question. It is significant to point out that neither
Addelman nor Mott contradicted this testimony. It has
long been recognized by the Board that interrogation of
employees for the purposes of preparing for an unfair labor
practice case can be legitimately undertaken, provided that
specific safeguards are observed. Both Addelman and Mott
testified that Fryckman was free to speak to them about
this subject and that no reprisals would be taken against
him. Fryckman did not recall whether or not he had been
told that no reprisals would be taken against him.
Assuming, arguendo, that the safeguards were met, two of
the questions asked by Mott were clearly coercive in
nature. A question asked by an employer that attempts to
find out if an employee is favorable to a union is illegal.
Without more, based on the question asked twice of
Fryckman as to "whose side he was on," I find he was
coercively interrogated and by so doing Respondent
violated Section 8(a)(1) of the Act.
D. Respondent's Discrimination Against Richard
Green
About a month after his discharge, on or about
November 13, 1975, a project manager in the Foley
Chicago office, Jay Liberman, phoned Richard Green.
Green had been introduced to Liberman 7 months before
his discharge, when Liberman was at Diablo Canyon.
Green's then supervisor, Virgil Tennyson, took Liberman
on a tour because it was anticipated that a quality program
would be organized in Chicago. Tennyson gave Green a
big buildup and recommended that he would be well
qualified to work for Liberman at the Respondent's
LaSalle, Illinois, project. Liberman read Green's resume
and said he thought Green was well qualified because of
his experience and background. He said he would review
the resume with his vice president, Robert Patrokowski,
and expressed the opinion that Green would probably hear
from him in the near future with respect to the quality
manager's position in Chicago.
In the course of Liberman's phone conversation of
November 13, he invited Green to come to Respondent's
Chicago office at the Company's expense to be interviewed
for the LaSalle job as quality manager.
Green flew to Chicago, where he met Patrokowski for the
first time. He reviewed Green's resume and said he was
quite impressed and he liked his credentials in quality
management. Green replied that the resume was not
complete because he had not recorded the fact that he is
presently a registered quality engineer, which license he
had obtained about 2 weeks before he was laid off at
Diablo Canyon.
Green met the supervisory personnel at the LaSalle plant
where he was introduced by Liberman as the new quality
manager for The Foley Company. The next day, Patrokow-
ski told Green, "Dick, I have received some very disturbing
news on you." Green said, "How's that." Patrokowski said,
"Well, LaMoyne Addelman has charged that your creden-
tials are fake and that you had an outstanding lawsuit
against the Company and also that you have participated
in and have an NLRB charge against the Company."
Green told Patrokowski that this was not true and he could
disprove all of these charges. Patrokowski told Green he
could not be hired with these conditions hanging over his
head. Patrokowski also asked Green about the NLRB
action. Green explained that he had not filed any NLRB
case and, with respect to a lawsuit against the Company, he
had filed a claim with the Department of Labor at Santa
Barbara, California, for 60 hours of backpay which he felt
was due to him as a result of attending school for 60 hours
off company time and property.
Green testified that Patrokowski said "he was not
concerned with his filing for 60 hours of backpay."
Patrokowski said there are three things that I want you to
check on, the fake credentials, the NLRB action, and the
lawsuit against Foley. It was arranged that Green was to
return to California, make an appointment to set up a
meeting with Mr. Lynch, Addelman's superior, and Lynch
would hear Green out and be an unbiased referee. About 3
days later, a meeting took place at Avila Beach, California,
at which Lynch, Addelman, and Green participated.
Lynch queried Green on the three points at issue: the
matter of his credentials, his claim for backpay, and his
alleged role in the NLRB matter. Green showed to Lynch
his credentials (which he also produced at the instant
hearing) which were shown to me and to Respondent's
counsel. This document states:
This is to certify that pursuant to the provisions of
Chapter 7, Division 3, of the Business Professional
Code, Richard Virgil Green is duly registered as a
professional engineer in Quality Engineering, in the
State of California, and is entitled to all the rights and
privileges conferred in said code.
1178
HOWARD P. FOLEY CO.
Witness my hand and seal, certificate 0160, this second
day of October, 1975.
Green testified that he did not construe his backpay
claim, filed with the California Department of Labor, as a
lawsuit against the Respondent. He said he had put in 60
hours on two seminars off company time and property, and
felt he was entitled to compensation because his atten-
dance at these seminars was a mandatory requirement
imposed on him by Respondent. The claim was rejected
because he had attended the seminars at a time when he
was quality manager and being paid a salary. The
additional compensation was paid only to hourly employ-
ees.
Green explained that the charge filed with the NLRB
against the Respondent in October was filed by his brother
James, Richard's name appearing only as a witness.
Furthermore, Green said he was not responsible for and
had no control over his brother's action.
The record shows that Respondent believed Richard
Green was involved in the circulation of the petition.
Richard Green credibly testified that, apart from signing
the petition, he took no active role in the organizational
effort. The record amply supports this contention and I so
find. The Board has held that where an employer's belief
that an employee has engaged in organizational activities is
the basis for that employee's termination, such termination
violates the Act. It appears from the record that Respon-
dent discharged both Green brothers because it believed
they were both involved in the circulation of the organiza-
tional petition. Respondent was especially interested in
exploring Richard Green's activity encompassed in the
NLRB charge against the Company.
In my view, Green was an outstanding, forthright witness
whose testimonial account from the very outset conveyed a
conviction that a truthful story was being told. I fully credit
Green's testimony.
Richard Green was not hired for the LaSalle job for the
above three reasons, all of which were explained and were
proven to my satisfaction to be incorrect. He was told that
Respondent felt that he was well qualified to be a field
inspector, but that he did not know how to deal with
personnel and therefore could not be hired for a manageri-
al position.
I conclude and find that the charges against him were
pretextual and that the real reason he was not hired was
because Respondent believed he filed a charge with the
NLRB in October. This action is violative of Section
8(a)(4) of the Act. I so find.
IV. THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
which is found necessary to remedy, and to remove, the
effects of the unfair labor practices and to effectuate the
policies of the Act.
Credited evidence establishes that Respondent dis-
charged Frank Cardamone because he pursued a grievance
concerning "high time" in accordance with the grievance
procedure established in the collective-bargaining agree-
ment. An employee engages in activity that is protected by
the Act when he seeks to enforce a contractual right or
utilize a grievance procedure set forth in the contract. Such
actions are extensions of the concerted activity giving rise
to the contract itself. Cray-Burke Company, 208 NLRB 708
(1974); Roadway Express, Inc., 217 NLRB 278 (1975);
Merlyn Bunney and Clarence Bunney, Partners, d/b/a
Bunney Bros. Construction Company, 139 NLRB 1516
(1962); TrumbullAsphalt Co., Inc., 220 NLRB 797 (1975). It
follows that actions which are intertwined with that
procedure and are necessary for the effective use of the
grievance procedure are also protected under the Act.
I have found that Respondent's interrogation of employ-
ee Fryckman was coercive and violative of Section 8(a)(1)
of the Act.
I have found that James and Richard Green were
discharged while engaging in protected activities in
violation of Section 8(a)(3) and (1) of the Act.
I have also found that Respondent unlawfully discharged
Frank Cardamone for engaging in protected concerted
activities in violation of Section 8(a)(3) and (1) of the Act.
Additionally, I have found that Respondent discrimi-
nated against Richard Green because of his alleged
involvement in filing an NLRB charge and, by so doing,
Respondent violated Section 8(a)(4) of the Act.
I shall recommend that Respondent make each of the
above-named dischargees whole for any loss of pay they
may have suffered by reason of their discharges in violation
of Section 8(a)(3), (4), and (I) of the Act in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest on backpay computed in the manner
described in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of their discharge to the date they
receive a valid offer of reinstatement.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The aforesaid unfair labor practices found herein
affect commerce within the meaning of the Act.
[Recommended Order omitted from publication.]
1179