Jo-Del, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1997

324 N.L.R.B. 1239 (N.L.R.B. 1997)

1239
324 NLRB No. 187
JO-DEL, INC.
1 On July 31, 1997, Administrative Law Judge George Carson II
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel filed limited exceptions and
a supporting brief.
2 The Respondent and General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions un-
less 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 (3rd Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 In light of the judge’s finding that employees Rick Long and An-
drew Raike are unfair labor practice strikers, we shall modify the
judge’s recommended Order to require that the Respondent offer
Long and Raike reinstatement upon their unconditional offer to re-
turn to work. See D’Armigene, Inc., 148 NLRB 2 (1964). It is not
necessary to make any change in the judge’s notice.
1 All dates are 1996 unless otherwise indicated.
2 The charge in Case 9–CA–34160 was filed on September 3; the
charge in Case 9–CA–34227–3 was filed on October 3; the charge
in Case 9–CA–34266 was filed on October 7; the charge in Case
9–CA–34323–2 was filed on October 23; the charge in Case 9–CA–
34425 was filed on November 29; and the charge in Case 9-CA-
34452 was filed on December 12, and thereafter amended on De-
cember 27.
3 I granted Respondent’s motion to dismiss two 8(a)(1) allegations
upon which no evidence was offered.
4 The complaint also alleges that two of the three employees who
were unlawfully laid off are currently engaged in an unfair labor
practice strike.
5 G.C. Exh. 10, additional payrolls, was provided after the close
of the hearing. Without objection, it is received.
Jo-Del, Inc. and Tri-State Building and Construc-
tion Trades Council, AFL–CIO. Cases 9–CA–
34160, 9–CA–34227–3, 9–CA–34266, 9–CA–
34323–2, 9–CA–34425, and 9–CA–34452
November 8, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The issues presented here are whether the judge cor-
rectly found that the Respondent committed several
violations of Section 8(a) (1) and (3) but did not vio-
late the Act by discharging employees Jeffrey Camp
and David Hall.1 The Board has considered the deci-
sion 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 rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Jo-
Del, Inc., Huntington, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following for paragraph 2(d) and relet-
ter the subsequent paragraphs.
‘‘(c) Upon their unconditional offer to return to
work, offer unfair labor practice strikers Rick Long
and Andrew Raike immediate and full reinstatement to
their former jobs, or, if those jobs are no longer avail-
able, to substantially equivalent positions, without prej-
udice to their seniority or other rights and privileges.’’
Engrid E. Vaughn, Esq., for the General Counsel.
Fred F. Holroyd, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Catlettsburg, Kentucky, on May 6 and 7, 1997.1
The second consolidated complaint issued on January 7,
1997.2 The complaint alleges two threats and one interroga-
tion in violation of Section 8(a)(1) of the National Labor Re-
lation Act (the Act),3 and the transfer and wage reduction of
one employee, the discharge of three employees, and the lay-
off of three employees following their participation in an al-
leged unfair labor practice strike in violation of Section
8(a)(3) of the Act.4 Respondent’s timely answer denied all
violations of the Act.
On the entire record,5 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in construction
contracting from its facility in Huntington, West Virginia. It
annually performs services valued in excess of $50,000 for
customers located outside the State of West Virginia. The
Respondent admits, and I find and conclude, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The answer admits, and I find and conclude, that Tri-State
Building and Construction Trades Council, AFL–CIO (the
Union), is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, Jo-Del, Inc., is a nonunion contractor.
For the past 20 years it has been operated by Jeffrey Riedel,
who became president of Respondent a month prior to the
hearing. Previously Riedel had been vice president. In the
summer of 1996, Jo-Del was involved in several different
projects, including construction of an osteopathic center at
Lewisburg, West Virginia, construction at Greenbrier Com-
munity College, also in Lewisburg, and construction of a
cold drawn steel plant near Point Pleasant, West Virginia.
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1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This comment was not alleged as a violation of Sec. 8(a)(1) in
the complaint. Since Walkup did not testify, it was not fully liti-
gated.
7 Although Adkins’ pay was cut, payroll records reflect that four
of the employees on the Greenbrier jobsite were receiving car-
penters’ wages.
Although a nonunion contractor, Jo-Del did employ individ-
uals who were union members.
In the summer of 1996, the Tri-State Building and Con-
struction Trades Council began organizational activity among
Respondent’s employees.
Respondent opposed the Union’s organizational activity.
On September 6, Riedel directed all Jo-Del employees to re-
port to a Ramada Inn in Charleston, West Virginia, where he
addressed them, stating Respondent’s opposition to unioniza-
tion. The parties stipulated to the text of the speech in which
Riedel noted that ‘‘seniority plays the biggest part in . . .
when and where you work.’’ He then stated:
We have experienced instances where up to 50 so-
called unemployed union personnel have shown up at
one of our jobsites seeking employment. Other times,
we have had up to 15 individuals visit our office seek-
ing employment. Add to those numbers the 70 who
work for Jo-Del[,] and some of you may have to wait
for at least 134 job positions to become vacant before
you can work. Top that number off with all the em-
ployees of the other merit shop contractors they’re at-
tempting to organize[,] and some of you may never
work.
Near the close of his speech, he addressed the employees
with the following remarks:
If there are currently some employees of Jo-Del who
are dissatisfied with the working conditions here or
with their relationship with the company, you have no
contract here and I’m willing to sever any ties that
there may be and part on good terms. If you’re that
dead set on being union, don’t try to force your opin-
ions on others, because there are quite a few here who
don’t understand why you want to try to force upon
them something they don’t want.
B. Facts
1. Lewisburg jobsite
Timothy Adkins, a journeyman carpenter with over 15
years experience, began working for Respondent in January
1995. In June 1996, he was assigned to Respondent’s osteo-
pathic center jobsite in Lewisburg. His job assignment was
installation of drywall, a task performed with a partner due
to the weight of the 4 x 10 pieces of sheetrock. Adkins
worked with Herbert Blankenship. The superintendent on the
site was John Walkup. James Boyd, project manager, nor-
mally visited the site once each week, usually on Monday.
Union Business Agent Thomas Williams had, in May, spo-
ken with Adkins, who was not a member of the Union at
that time. Adkins agreed to engage in organizational activity
on behalf of the Union. In mid-July, Adkins began solicita-
tion of his fellow employees on behalf of the Union. He did
this both before and after work, as well as at lunch. Walkup,
who is a union member, cautioned Adkins about soliciting in
the building, stating that ‘‘Mr. Riedel wouldn’t like it, and
he [Walkup] would be put on the spot.’’6 At the same time
he began soliciting, Adkins began wearing a cap inscribed
with the name of Local 302 of the Carpenters Union. The
cap was white with a green bill.
On July 23, Blankenship went to get a drink of water after
he and Adkins had lifted a sheet of drywall into place.
Adkins remained and attached the sheet of drywall to the
metal studs, a task that took approximately 5 minutes. When
he completed that task, Adkins began making his way to the
rest room. On his way he encountered Blankenship, who was
returning from getting water. As they approached one an-
other, a new employee, Eugene Cochran, appeared and asked
about quitting time. At this same time, Project Manager
Boyd encountered the threesome. Boyd asked what they were
doing, and Adkins indicated that they were hanging sheet
rock. Boyd asked where, and Adkins told him.
Boyd reported to Riedel that he had seen Adkins walking
around and talking with other employees on two occasions.
He did not describe the circumstances of either of these ob-
servations. Boyd stated that he wanted to transfer Adkins to
a job where there were fewer employees so that he could be
more closely supervised. Riedel told Adkins that it was his
decision. Boyd did not criticize either the quality or quantity
of the work Adkins had performed, only that he had seen
him walking around and talking with other employees on
two occasions. Although Boyd did not mention the Car-
penters union cap that Adkins was wearing, I find that he ob-
served it when he spoke with Adkins on July 23.
On July 24, about half way through the work day, Walkup
told Adkins to call Boyd at the main office. Adkins did so.
Boyd told him that ‘‘we can’t afford to have you loafing.’’
Adkins asked what he was talking about and Boyd, referring
to his encountering the three employees, stated that ‘‘you
all’’ had been standing in the hallway talking. Adkins sought
to explain what had happened, but Boyd ignored him. He
told Adkins that he was being moved to the Greenbrier Col-
lege jobsite. Adkins then asked to speak to Riedel. Adkins
asked what was going on. Riedel told Adkins he was being
transferred. Adkins asked what this was about, and Riedel
said that he had been talked to before about loafing. Adkins
denied this and asked, ‘‘What’s this?’’ Riedel replied that
Boyd saw him. Adkins said he did not know what to tell
him. Riedel ended the conversation saying that he had to put
some faith in his project manager.
Blankenship was not transferred. Immediately prior to
Adkins’ transfer, there were six employees and one super-
visor on the Greenbrier Community College job. After being
transferred, Adkins initially worked, and was paid, as a la-
borer. Since he was not performing skilled carpentry work,
his wage was cut from $25.37 per hour to $19.12 per hour.7
This continued for several months until the Greenbrier job
progressed to the point that Adkins’ carpentry skills were
again utilized.
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1241JO-DEL, INC.
8 Even if I were to infer that Kerfoot observed Hall, there is no
basis for inferring that he knew what he was doing. Raysel-IDE,
Inc., 284 NLRB 879 (1987).
9 General Counsel suggests that since Hall and Camp rode to work
together, ‘‘it was natural for Kerfoot to assume that Hall would join
the ranks.’’ In the absence of any evidence that Hall spoke to other
employees about the Union or engaged in any activity other than
signing the card, I find no basis for making such an assumption.
Kerfoot’s source of information about employees, Saunders, did not
identify Hall as a union supporter.
10 Respondent’s brief incorrectly states that Robinson reported that
‘‘[t]he three men [Saunders, Hall, and Camp] were seen throwing
mud.’’ Although Robinson reported both Camp and Brooks, Kerfoot
mentioned only Camp, not Brooks, when testifying about the report
he received from Robinson.
11 Several witnesses, in response to General Counsel’s questions,
testified generally that they had not observed Saunders, Camp, or
Hall loafing, goofing off or not working when they were supposed
to be working. Camp, as noted above, was asked about, and denied,
throwing mud at anyone. Hall also was asked about, and denied,
throwing mud. Neither were asked about leaving their work area and
wasting time on the day that Kerfoot left the jobsite several times.
Unlike Saunders, who was recalled, neither Camp nor Hall were re-
called to deny the conduct that Kerfoot testified he observed.
12 Robinson testified that, on the same day as the day he reported
to Kerfoot that Camp and Brooks had been throwing mud, he re-
ported to Kerfoot that Saunders and Hall had not been working, al-
though he says he did not need to make such a report because
‘‘wasn’t nothing getting done.’’ Robinson did not recall the actual
date. Robinson stated that Saunders and Hall were working together
at the bottom of the stem of the ‘‘T.’’ On September 30, Saunders
and Hall were working separately, at places other than the bottom
of the ‘‘T.’’ Kerfoot did not testify to receiving a report regarding
Saunders and Hall from Robinson. I do not credit Robinson’s
uncorroborated testimony regarding Saunders and Hall.
13 ‘‘It is . . . common . . . for a trier of fact to believe some, but
not all, of a witness’s testimony.’’ Farmer Bros. Co., 303 NLRB
638, 649 (1991). Counsel for General Counsel argues that all of
Kerfoot’s testimony is suspect; however, regarding the neglect of job
duties on September 30, she adduced evidence specifically rebutting
only Kerfoot’s testimony relating to Saunders. As discussed above,
I have credited that testimony.On October 1, when Saunders and
Hall reported to work, Kerfoot told them that he did not need them
anymore. Camp was absent on October 1. When he reported to work
on October 2, Kerfoot told him that he was no longer needed.
2. Point Pleasant jobsite
In August, Respondent began hiring personnel to construct
a cold drawn steel plant near Point Pleasant, West Virginia.
The Union learned that this work was available and author-
ized members to seek work at this jobsite. Various members
did so. Superintendent Guy Kerfoot hired union members
Sam Saunders, a journeyman carpenter, and Jeffrey Camp, a
laborer. Rick Long had previously been a member of the
Carpenters Union, but was not a member at the time he was
hired. Andrew Raike carried a Steelworkers card, but was not
a member of a local affiliated with the Tri-State Building
And Construction Trades Council. David Hall and Jake Ste-
phenson had no connection with any union.
At some point after he was hired, Long was contacted re-
garding the Union’s organizational effort. He stated his will-
ingness to again become a member and was sent a supply
of union authorization cards. On September 13, at an Exxon
service station located about a quarter of a mile from the job-
site and at which the employees regularly stopped on their
way to work, Long handed out the union authorization cards
to his fellow employees as they stopped by the station. Job
Superintendent Kerfoot also regularly stopped at the station,
and he did so on September 13. On that morning at the
Exxon service station, Kerfoot saw the employees talking
with various individuals whom he did not know. Although
Hall testified that he was filling out a union card some twen-
ty feet from where Kerfoot stopped his vehicle, there is no
evidence that Kerfoot either observed Hall or knew what he
was doing.8 Hall left before Kerfoot.
In mid-September, Kerfoot asked Camp if he were in the
Union. Camp responded affirmatively. In mid-September
Kerfoot also spoke with Saunders regarding his union mem-
bership. In the course of the conversation he reconfirmed that
Camp was a union member, stating that ‘‘Pete works out of
the Laborers Hall,’’ a statement with which Saunders agreed.
Kerfoot then specifically inquired about the union member-
ship of employee David Hall, who regularly rode to work
with Camp. He asked, ‘‘How about David?’’ Saunders re-
plied that Hall did not work out of any union hall.9
Respondent was, at this jobsite, constructing a large ‘‘T’’
shaped building. On September 30, Camp was carrying mate-
rials to the carpenters who were building boxes for the steel
uprights. He was also assisting by threading taps onto the
end of rods that the carpenters were pushing through to him.
Kerfoot left the jobsite three times in order to prepare a die-
sel fuel tank. On one of the occasions that he returned to the
jobsite, he noticed that Camp appeared to be throwing some-
thing, he did not know what. Employee Donnie Robinson re-
ported to Kerfoot that he had observed Camp and another
employee, Tom Brooks, making mud balls and throwing
them.10 On a previous occasion Brooks had thrown mud at
Robinson and Kerfoot had laughed about it. Camp acknowl-
edged throwing dirt out of the way so that he could thread
the taps onto to ends of the rods. He denied throwing mud
at anyone.
On September 30, Saunders was setting plates at the ex-
treme left end of the top of the ‘‘T’’ shaped building. Hall
was cleaning footers on the outside of the wall on the stem
of the ‘‘T.’’
Kerfoot testified that, in addition to observing Camp ap-
pear to throw something, on each occasion when he returned
to the jobsite, he observed that Camp, as well as Saunders
and Hall, were not where they were supposed to be; rather,
they were mingling with other employees away from their
work areas. He further testified that the work that these em-
ployees were supposed to be performing was not being done;
the job was not progressing properly. Because of this, he de-
cided to terminate their employment. Neither Camp nor Hall
were called to deny leaving their work area and wasting
time, the conduct which Kerfoot testified was the reason for
their terminations.11
Saunders denied being out of his area and not performing
the work he was assigned to perform. Saunders is extremely
skilled, with over twenty years experience. In addition to reg-
ular carpentry work, he performed lay out work with
Kerfoot. He credibly denied neglecting his work and specifi-
cally stated that he had completed all that he was supposed
to have completed on September 30.12 I do not credit
Kerfoot’s testimony that he observed Saunders out of his
work area or that Saunders had not performed all of his as-
signed work on September 30.13
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1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 The charge in Case 9–CA–34266, alleging the three discharges,
was filed on October 7.
15 The picketing did not induce any individual to cease doing busi-
ness with Respondent. Respondent’s employees who honored the
picket line protesting Respondent’s unfair labor practice, the termi-
nations of October 1 and 2, of which I have found the termination
of Saunders to have been unlawful, were engaged in a lawful strike
pursuant to Section 13 of the Act.
16 The payroll period ending November 13 was not placed into
evidence. Kerfoot, although the job superintendent, appears on the
payrolls as a carpenter. His hours are not reflected in the totals stat-
ed above.
17 Payroll records confirm that work was performed by at least
seven employees on Wednesday and Friday, November 27 and 29.
18 The Union’s hiring hall rules were not placed into evidence.
There is no claim that this statement was incorrect.
A new laborer, Mike Nutter, was hired and began work on
October 2.
Union Business Agent Williams learned of the termi-
nations of Saunders, Camp, and Hall. On October 16, Wil-
liams picketed the Point Pleasant jobsite together with the
business agent of the cement finishers’ local union, and a
representative from the laborers’ and carpenters’ local
unions. The signs they wore reported that Jo-Del had been
charged with unfair labor practices.14
On October 15, 16, and 17, the employees were pouring
concrete into forms that had been prepared for the floor of
the structure. Employees Rick Long, Andrew Raike, and Jake
Stephenson regularly rode to work together. They worked on
October 15. On October 16, the date that the Union picketed
the jobsite, Stephenson was driving. He stopped when he ob-
served the pickets. Long, Raike, and Stephenson spoke with
the pickets. They then returned to the vehicle and went
home. Despite the absence of these employees, the pouring
of the concrete was carried out on October 16.15
On October 17, there was no picket line. Long, Raike, and
Stephenson reported to work as usual. Kerfoot was late.
When he arrived at the jobsite, the employees were already
working. He called Long, Raike, and Stephenson together.
When they had assembled, he told them that he was laying
them off because they had left him in a bind the day before.
Kerfoot testified that he made the decision to lay off these
employees since they were not really needed, as evidenced
by the successful pouring of the concrete without them on
October 16. I do not credit this testimony. It conflicts with
Kerfoot’s contemporaneous statement that the employees had
left him in a bind. It is also inconsistent with Respondent’s
payroll records which reflect that, on October 17, Kerfoot
worked 15 hours, as did several of the remaining employees,
including a new employee, Steve Taylor, who was hired and
also worked 15 hours that that same day.
Only a total of 29 hours of work was performed by labor-
ers for the payroll period ending October 30, and only a total
of 40 hours was performed for the payroll period ending No-
vember 6. The payroll period ending November 20 reflects
55 total hours of work.16 On Friday, November 22, Kerfoot
called Long, Raike, and Stephenson and requested that they
report to work on Monday, November 25. They did so, and
all worked on November 25 and 26. On Tuesday, November
26, Kerfoot told Long, Raike, and Stephenson that the job
was going to be shut down for the Thanksgiving holiday and
the weekend. There would be no work on Wednesday or Fri-
day.
On Monday, December 2, Long, Raike, and Stephenson
reported to work. Long noticed that a large number of forms
that had not been constructed when the employees left the
jobsite on the previous Tuesday had been constructed and
were in place. He confronted Kerfoot about this, asking what
he had against union carpenters.17 After further conversation
Long stated that he was going to make a telephone call.
Long and Raike left, called the Union, returned, and told
Kerfoot that they were on strike.
C. Analysis and Concluding Findings
1. The 8(a)(1) allegations
In his September 6 speech, Riedel pointed out to Respond-
ent’s employees what he considered to be various disadvan-
tages in working through referral from a union hall. He states
his opinion that ‘‘seniority plays the biggest part in . . .
when and where you work.’’18 He noted that some 65 union
members had applied for work at Jo-Del, which had 70 em-
ployees, and that if they had been being referred, some em-
ployees would have to wait for 134 vacancies. He then stated
‘‘[t]op that number off with all the employees of the other
merit shop contractors they’re [the Union] attempting to
organize[,] and some of you may never work.’’ General
Counsel argues that this statement violated Section 8(a)(1) of
the Act, but cites no persuasive case authority. Section 8(c)
of the Act, cited by Respondent, protects the expression of
‘‘any . . . opinion . . . if such expression contains no threat
of reprisal or force or promise of benefit.’’ I find, as in
Pentre Electric, 305 NLRB 882, 883 (1991), that Riedel’s
statement reflected his opinion of the consequences of refer-
ral of employees from a hiring hall. It threatens no retaliatory
action by Respondent. In these circumstances, I find that
Riedel’s comment did not violate the Act.
Riedel, near the end of his speech, advised employees
‘‘who are dissatisfied with the working conditions here’’ that
they had no contract and that he was ‘‘willing to sever any
ties that there may be.’’ Any doubt that the reference to
those ‘‘who are dissatisfied’’ referred to those who supported
the Union was immediately removed when Riedel stated, in
the very next sentence, that ‘‘[i]f you’re that dead set on
being union, don’t try to force your opinion on others.’’
Riedel’s stated willingness to ‘‘sever any ties that there may
be,’’ although constituting an intriguing turn of phrase, does
not alter the clear message: Employees who supported the
Union should quit. By advising that those who supported the
Union should quit, Respondent violated Section 8(a)(1) of
the Act. Tualatin Electric, 312 NLRB 129, 134 (1993).
Kerfoot admitted the conversation in which he sought to
obtain as much information as he could regarding the union
sympathies of employees that Saunders knew. Saunders him-
self was a union member, and I find no element of coercion
regarding Kerfoot’s questioning Saunders about the Union.
Kerfoot was not privileged to probe for information regard-
ing others. Action Auto Stores, 298 NLRB 875, 895 (1990).
In confirming that Camp was a union member and in seeking
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1243JO-DEL, INC.
19 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981).
20 I draw no adverse inference from Respondent’s failure to call
Boyd since he is no longer employed. Lancaster-Fairfield Commu-
nity Hospital, 303 NLRB 238 fn. 1 (1991).
21 I also note that Hall was not called to rebut the testimony that
he had repeatedly been out of his work area on September 30.
22 Limestone Apparel Corp., 255 NLRB 722 (1981).
to discover whether Hall was a union member, Kerfoot vio-
lated Section 8(a)(1) of the Act.
2. The 8(a)(3) allegations
a. The Lewisburg jobsite
Adkins engaged in union activity and Respondent was
aware of that activity. Indeed, Superintendent Walkup had
cautioned Adkins about soliciting in the building, noting that
Riedel would not like it. In late July, Adkins had begun
wearing a distinctive Carpenters union cap. He was he was
involuntarily transferred, and his wages were cut, after Boyd
saw him speaking with a fellow employee. In view of Re-
spondent’s animus towards employee organizational activity,
as found above, I find that General Counsel has established
a prima facia case.19
Respondent presented no probative evidence that Adkins
neglected his job duties. Indeed, the only evidence presented
was the hearsay report that Riedel received from Boyd.20
That report did not establish any job deficiency, only that
Boyd claimed that he twice observed Adkins walking around
and talking to other employees. The record establishes, and
I find, that Boyd observed a group of three employees in a
brief conversation. One of the participants, Adkins, was
wearing a cap bearing the inscription of Local 302 of the
Carpenters Union. If there had been any job deficiency on
Adkins’ part, his partner Blankenship would have been
equally responsible for such deficiency. No job deficiency
was cited. Indeed, after Adkins was transferred, superintend-
ent Walkup told Blankenship that he wanted Adkins back on
the job.
Respondent has not established that Adkins would have
been transferred if he had not been engaged in union organi-
zational activity. There is no evidence that Adkins needed
closer supervision. I find that the reference to a need for
closer supervision reflects Respondent’s concern with
Adkins’ union organizational activities. Respondent did not
present superintendent Walkup, who observed Adkins’ work
on a daily, rather than an intermittent, basis. There was no
reference to a need for closer supervision of Blankenship
who was not engaged in union activity and who was not
wearing a union cap. The need for closer supervision referred
not to Adkins’ job performance, but to Respondent’s desire
to restrict his organizational activities. Respondent removed
Adkins, who was actively engaging in organizational activity,
from the busy osteopathic center jobsite to the Greenbrier
site where there were only six other employees. I find that
this transfer was directly motivated by Adkins’ union activ-
ity, and Respondent’s animus towards that activity. By trans-
ferring Adkins, Respondent violated Section 8(a)(3) of the
Act.
b. The Point Pleasant jobsite
Sam Saunders was a known union member. When Kerfoot
interrogated Saunders, he confirmed that Camp was a union
member. I find no probative evidence that Respondent was
aware of any union affiliation or activity by Hall. The only
activity to which Hall testified was the signing of an author-
ization card on September 13. There is no probative evidence
that Respondent was aware of this. Hall did not testify to en-
gaging in any other union activity, such as engaging in con-
versations relating to the Union with other employees. Thus,
as to Hall, a ‘‘fundamental prerequisite’’ for establishing a
discriminatory motive has not been established. Bayliner Ma-
rine Corp., 215 NLRB 12 (1974). The absence of evidence
establishing knowledge by Respondent of any union activity
or affiliation by Hall precludes the finding of a violation of
Section 8(a)(3) of the Act.21
The analytical framework of Wright Line is applicable in
dual or mixed motive cases after General Counsel has estab-
lished employee union activity, employer knowledge of that
activity, animus towards such activity, and adverse action
taken against those involved in, or suspected of involvement
in, that activity.
Although Camp did deny throwing mud at anyone in his
direct testimony, he was not called to rebut the testimony
that, on September 30, he had regularly been out of his work
area and had not been performing his assigned job tasks.
Kerfoot had, on a previous occasion, laughed when he heard
that someone had thrown mud at employee Robinson. On
cross-examination he testified that he was not too concerned
about the mud throwing, that what concerned him was that
Camp was not doing his work. I find that Respondent has
established that Camp would have been terminated regardless
of his union affiliation due to his conduct on September 30.
Thus, his termination did not violate Section 8(a)(3) of the
Act.
I do not credit Kerfoot’s testimony that he summarily ter-
minated Saunders, supposedly for not doing his job. Saun-
ders credibly testified that he was not out of his work area
and that he did perform the work assigned to him on Sep-
tember 30. Kerfoot was aware of Saunders’ union affiliation.
Respondent’s animus towards employees who engaged in
union activity is established. Saunders, a skilled journeyman
carpenter with 20 years experience, had been performing lay
out work with Kerfoot. In view of his superior skills and
knowledge of other employees, of which Kerfoot was aware
following the interrogation regarding the union affiliation of
Camp and Hall, I find that Kerfoot considered Saunders to
be a leader among the employees. Respondent did not wish
to have a skilled journeyman providing leadership during the
Union’s organizational effort. Kerfoot sought to camouflage
his unlawful action by terminating Saunders at the time he
legitimately terminated Camp and Hall. The hiring of a new
employee, Mike Nutter, on October 2, establishes that the
services of at least one of the three terminated employees
was needed. I find that the reasons asserted by Kerfoot for
terminating Saunders were pretextual since Saunders had not
been out of his work area and had not neglected his job.22
Respondent, by terminating Saunders, violated Section
8(a)(3) of the Act.
Turning to Respondent’s treatment of Long, Raike, and
Stephenson, there is no question that when they refused to
cross the union’s picket line, they were engaged in union ac-
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1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Although Kerfoot told Long that, if he left, he would consider
him to have quit, Respondent, after Long and Raike advised that
they were on strike, has afforded them their rights as strikers.
Matlock Truck Body & Trailer Corp., 217 NLRB 346, 349 (1975).
No violation is alleged regarding Kerfoot’s initial remarks.
24 I am mindful that, despite the discrimination against these em-
ployees, Respondent’s payroll records confirm that the remaining
employees did not work continuous full work weeks between Octo-
ber 17 and November 24. I shall leave for compliance the computa-
tion of the appropriate amount of back pay. I note that there is no
allegation of discrimination since December 2, when Stephenson re-
turned to work and Long and Raike went on strike.
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
tivity and Respondent was aware of that activity. Kerfoot
told them that he was laying them off because they had left
him in a bind, thus establishing a clear nexus between their
union activity and his action. After taking this retaliatory ac-
tion, Kerfoot and several of the remaining employees, includ-
ing new hire Taylor, had to work for 15 hours each. The evi-
dence of discrimination in the instant case is even more com-
pelling than the evidence in National Fabricators, 295
NLRB 1095 (1989), where the respondent selected seven em-
ployees for a temporary layoff because it believed they were
likely to engage in the protected union activity of honoring
a picket line that might be set up in the near future. In find-
ing a violation the Board stated that ‘‘we think it clear be-
yond peradventure that the criterion used by the Respondent
to select employees for layoff—disfavoring employees who
were likely to engage in protected union activities—is the
kind of coercive discrimination that naturally tends to dis-
courage unionization and other concerted activity.’’ Ibid. In
the instant case the employees selected had actually engaged
in protected union activity by honoring a picket line. I do not
credit Kerfoot’s testimony that he determined that he did not
need these employees. He told Raike, Stephenson and Long
that they had left him in a bind. He retaliated against them
by laying them off. I find that the ‘‘direct and proximate
cause’’ of the selection of Long, Raike, and Stephenson for
layoff was their honoring of the union’s picket line. Bingham
Willamette, 282 NLRB 1192, 1194 (1987). By laying off
Long, Raike, and Stephenson, Respondent violated Section
8(a)(3) of the Act.
Respondent’s discrimination against Long, Raike, and Ste-
phenson continued in November when Kerfoot recalled them
for two days and then told them that there would be no work
on Wednesday or over the Thanksgiving holiday weekend.
By failing to schedule them for work on November 27 and
29, while untruthfully telling them there would be no work
over the Thanksgiving holiday weekend, Respondent violated
Section 8(a)(3) of the Act.
Long, Raike, and Stephenson discovered Respondent’s un-
truthfulness when they reported to work on December 2.
Long and Raike confronted Kerfoot about this, and both left
to contact the Union. Thereafter they returned to the jobsite
and advised Kerfoot that they were on strike. Stephenson did
not strike; he continued to work. I find that the strike in
which Long and Raike engaged was caused by Respondent’s
unlawful discrimination against them, and it is, therefor, an
unfair labor practice strike.23
CONCLUSIONS OF LAW
1. By advising employees who support the Union that they
should quit and interrogating employees regarding the union
affiliation and sympathies of other employees, the Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. By transferring Timothy Adkins on July 24, 1996, dis-
charging Sam Saunders on October 1, 1996, and laying off
Rick Long, Andrew Raike, and Jake Stephenson from Octo-
ber 17, 1996, until November 25, 1996, and failing and re-
fusing to schedule them for work on November 27 and 29,
1996, because of their union sympathies and activities, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
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 discriminatorily transferred Timo-
thy Adkins, it must make him whole for any loss of earnings
and other benefits, computed on a quarterly basis, plus inter-
est as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent having discriminatorily discharged Sam
Saunders, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, computed
on a quarterly basis from the date of discharge to date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, supra.
The Respondent, having discriminatorily laid off, and
failed and refused to schedule for work, Rick Long, Andrew
Raike, and Jake Stephenson, it must make them whole for
any loss of earnings and other benefits, computed on a quar-
terly basis, less any net interim earnings, plus interest as
computed in New Horizons for the Retarded, supra at
1173.24
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Jo-Del, Inc., Huntington, West Virginia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Advising employees who support the Tri-State Build-
ing And Construction Trades Council, AFL–CIO or any
other union that they should quit.
(b) Interrogating employees concerning the union affili-
ation and sympathies of other employees.
(c) Transferring, discharging, laying off, or otherwise dis-
criminating against any employee for supporting the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
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1245JO-DEL, INC.
26 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Sam
Saunders full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Timothy Adkins, Sam Saunders, Rick Long, An-
drew Raike, and Jake Stephenson whole for any loss of earn-
ings and other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful transfer, dis-
charge, and layoffs and notify the employees in writing that
this has been done and that these actions will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
facility in Huntington, West Virginia, and at all current
jobsites, copies of the attached notice marked ‘‘Appendix.’’26
Copies of the notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since September 3, 1996.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT advise any of you who support the Tri-State
Building And Construction Trades Council, AFL-CIO, or any
other union that you should quit.
WE WILL NOT interrogate you concerning the union affili-
ation and sympathies of your fellow employees.
WE WILL NOT transfer, discharge, lay off, or otherwise dis-
criminate against you for supporting the Union.
WE WILL, within 14 days from the date of the Board’s
Order, offer Sam Saunders full reinstatement to his former
job or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make whole Timothy Adkins, Sam Saunders,
Rick Long, Andrew Raike, and Jake Stephenson for any loss
of earnings and other benefits resulting from the discrimina-
tion against them, less any net interim earnings, plus interest.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
JO-DEL, INC.
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