John H. Cooney, Inc.

National Labor Relations Board - Board Decisions

May 31, 1985

275 N.L.R.B. 625 (N.L.R.B. 1985)

JOHN H . COONEY, INC
John H. Cooney , Inc. and , Thomas F. Faga. Case
22-CA-12822,-
31 May 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 December 1984 Administrative Law
-Judge D. Barry Morris issued the at deci
sion. The Respondent' filed exceptions and a sup-,
porting brief. '
The Board has considered the decision and
record in light of 'the exceptions and brief and has
decided to affirm the judge's rulings, findings,, and.
conclusions only to the extent consistent with this,
Decision and Order.'
The , judge found that the Respondent violated
Section 8(a)(1) of the Act by laying off employees
Faga and Hastie after they refused to pay back to
the Respondent moneys owed them as a result of a
state audit of the Respondent. The Respondent ex=
cepts, contending that the record demonstrates that
Faga and Hastie were laid off because of lack of
work. For the reasons set forth below, we find,
contrary to the judge, that the Respondent has
demonstrated that Faga and Hastie would have
been laid off even absent their refusal to reimburse
the Respondent. .
Thomas Faga and Alan Hastie began their em-
ployment with the 'Respondent as pipefitters on 10
December 1982 and 6 June 1983, respectively. In
August or September 19832 Juanita Krause, secre-
tary-treasurer of the Respondent, told Faga that a
representative of the New Jersey Department of
Labor had informed the Respondent that its pipefit=
ters were being underpaid. As a result of this audit,
Faga and Hastie were entitled.to a higher hourly
rate, and backpay retroactive to the-date of their
employment.3 In September or early October, John
Krause, the Respondent's president, told Faga that
he would like to make an arrangement with Faga
and Hastie whereby they would pay the money
owed retroactively back-to him and he would help'
them with the income taxes on it. Faga told Krause.
he would think about it, and then discussed the sit--
uation with Hastie. On 25 October, Faga met with
Krause, and Krause restated,his proposal ,regarding
t The Respondent 's request to reopen the record to receive additional
evidence is denied , as there is no contention that the additional evidence
is either newly discovered or previously unavailable See Sec.
10248 (d)(1) of the Board's Rules and Regulations The Respondent's re-'
quest for oral argument is also denied, 'as the record , exceptions, and
briefs adequately present the issues and the 'positions of the parties -
2 All dates are in 1983 unless otherwise indicated
8 The retroactive payments totals were $3920 for Faga and $1438 for
Hastie
625
payment of the retroactive money back to him.4
The judge credited Faga's account of this conver-
sation, finding -that in response to Faga's question
"what if I don't [pay back the money]?" Krause
said, "if you don't give it back, you go down the
road."5 On 28 October, Faga called Mrs. Krause
and told her that he would be at the shop later that
afternoon to pick up his'weekly pay and his retro-
active check. He was laid off that afternoon. Hastie
was informed of his layoff when he reported to
work the following Monday morning.
In concluding that the Respondent violated Sec-
tion 8(a)(1) by laying off Faga and Hastie, the
judge first found that the General Counsel made a
prima facie- showing that protected conduct was a
motivating factor in the Respondent's layoff deci-
sion. The judge relied on Krause's 25 October
statement that if they did not pay the money back
they would "go- down the road," and noted that
they "did not reimburse Respondent and they were
laid off three days later." The judge further found
that, because Faga and Hastie, discussed Krause's
proposal between themselves and with Morris, they
engaged in protected concerted activity known to
the Respondent.6 The. judge' then rejected the Re-
spondent's contention that Faga and Hastie were
laid off because the Town of East Orange project
on which they performed most of their work ter-
minated 28 October. In so doing, the judge found,
inter alia, that while the Respondent's field. work
force declined from, 19 to 4 employees between 9
October and 18 December, neither Faga nor Hastie
worked exclusively at East Orange and because
both were admittedly "excellent and valued em-
ployees," it could reasonably be expected that were
it not-for their failure to reimburse the Respondent
they would have'been retained beyond 28 October,
as were a significant number of the Respondent's
employees. Accordingly, the judge 'concluded that
the Respondent did not satisfy its burden of dem-
onstrating that Faga and Hastie would have been
laid.off were, it not for the protected concerted ac-
tivity. We disagree. -
Thus, in reaching this conclusion, the' judge
failed to consider several key and uncontroverted
facts which we f nd support the Respondent's con-
tention that Faga and Hastie were laid off 29 Octo-
ber because the East Orange project was suspend-
ed. According to the uncontroverted testimony of
4 Also present for part of this meeting was the Respondent 's field su-
penntendent James Morris Hastie, who had also been called to the meet-
ing, arrived as Morris and Faga walked out of Krause's office
s As Faga testified at the hearing, the phrase "go down the road" is a
slang expression that construction workers use for being fired
6 In the absence of exceptions , we adopt , pro forma , the judge 's find-
ing that Faga and Hastie engaged in protected concerted activity
275 NLRB No. 88
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Morris, whom the judge credited,
Faga, and Hastie ',did most of, their plumbing and
,pipefitting work at various school buildings in the
Town 'of East Orange. -Work was performed on a
time and -materials basis, and was to proceed until
the architect, in charge of renovations informed the
Respondent otherwise. Though not noted by the
judge, in -fact, after a° phone call from town 'offi-
cials, work at East Orange was suspended as of 5
October. : There were, indications, however, that
work would proceed. at some future point, 7 and
Morris made efforts .to' find work for. Faga and
Hastie in the meantime . Faga was then assigned to
several small repair jobs' during .the next week or
so. Hastie worked at the Respondent's shop sweep-
ing and driving,a truck because, according to the
uncontroverted testimony of Mrs. Krause,' "we
[Respondent] were going to be called back.". Fur-
thermore,' the-judge overlooked 'the fact that Mrs;
Krause testified without contradiction that the Re-
spondent intended to lay.,off, both Faga and Hastie
as' of 14 October-l l days prior to, the conversa-
tion in which Krause told Faga that a refusal to re-
imburse him would send them "down the road"-
because work in East Orange had not yet resumed.
In this regard Mrs. Krause testified that, on the
afternoon of 14 October; she was literally handing
Hastie his final paycheck- *hen a phone call came
in from -. East' Orange- stating -that 'there- 'was some
work to be done.8 ' According to Morris; the 'work
involved, repairing' storm drains in, the wake of
heavy rains, and Faga and Hastie' worked there
until 28 October, when that work was :completed:
Morris. further testified. that because, he had no ad-'
ditional work available for either employee after'
this, 'both -were' then laid off. He, did 'tell `Faga,
however, "that' 'we' were' quite satisfied with him'
and that he would proceed again- as,soon as .we get-
notification from the Town of East Orange that we
could start working again." ,
This' additional uhcontroverted -'evidence sup-
ports', the -Respondent's "contentions regarding the
reasons -for the - layoff of Faga and Hastie .' Further,
the judge's reliance on the fact that other, employ-
ees were retained- by the ' Respondent: after 28 Octo-
ber-is misplaced' ,The recordindicates'that in-gen-
eral the Respondent's employees were assigned to
specific jobs, and that prior to 28 October employ-
ees were laid =off,when°'work at the-jobs ,id=which
they' = were = a's'signed- •was•'suspended ' indefinitely or'
7 Morns testified that it was Faga himself who, having been in - contact
with town " offcials; 'informed him''that'work ` would - probably resume j
This is supported by the testimony of Mrs . Krause, who stated that Faga
told her they would be called back -
8 Oscar Felix , a third employee who worked at East .Orange, was laid
off1 14'Ociobei and'was not recalled thereafter Y
completed.9 Thus the layoff of Faga and Hastie
upon the suspension of the East Orange project
was not an extraordinary occurrence. Although
both employees performed 'work at other projects,
the record indicates that these other jobs were per-
formed during brief slack periods at East Orange.
Finally, the judge's statement that. "the two em-
ployees did not reimburse Respondent and they
were laid off three days later" is not supported by
the record. The record indicates that as of 28 Octo-
ber, neither employee' had received any retroactive
money.1° Moreover, 'there is no evidence that
either Faga or Hastie ever informed Krause that
they had decided not to reimburse the Company.
Indeed, Krause's uncontroverted testimony regard-
ing Faga's response to his proposal was that "he
basically never gave me an answer.""
Accordingly, in light of all the foregoing, we
conclude that the Respondent has established that
Faga and Hastie would have been laid off because
the East Orange project was suspended, regardless
of any protected activity in which they may have
engaged .12 We shall therefore dismiss the com-
plaint. . '
ORDER
The complaint is dismissed.
MEMBER DENNIS , dissenting.
Contrary to the majority, I would adopt the
judge's decision and find that, the Respondent vio-
lated Section .8(a)(1) -by laying off employees
Thomas Faga and Alan Hastie because of -their un-
willingness to "kick back" to' the Respondent funds
the 'Respondent ''owed' them:', I agree' with the
For example: wlien ' the Respondent's Florham Park project reached
a` point on 10 October where no further ' work-was possible , the three em-
ployees ^ assigned `to that project were laid off- for "lack of work "
Member Hunter - notes that the judge declined to consider evidence con-
cerning the Respondent 's layoff practices after 28 October, relying on
Allied Lettercraft Co, 272 NLRB 612 (1984), in which Member Hunter
dissented Member Hunter finds that the judge's reliance on that case
does not affect the result of the decision here
1° Krause testified that when he first made the payback proposal, he
assumed that the money would be paid directly from the Respondent to
Faga and Hastie . The State Department of Labor later informed him that
the payments were to go from the Respondent to the - State, and then
from'the State to the employees. The record' reveals that neither employ-
ee received any moneyiuntil January 1984 . _ '
" Contrary to our dissenting colleague, we do not view Faga's state-
merit on 2i October ' t1iat 'he would be- in the office to pick up'hts weekly
pay and retroactive check as evid^nce 'of the 'Respondent 's' knowledge
that Faga and Hastie would not later reimburse the Respondent Rather,
Faga's statement does not indicatCone;way ' or the other whether he and
Hastie would participate in the reimbursement scheme
i2 See Wright Line, 251 NLRB 1083 (1980), enfd 662 F2d 899 (1st
Or 1981 ), cert. denied 455 U S . 989 (1982 ), approved in NLRB v. Trans-
portation Management Corp, 462 U S ' 393 (1983)
1 Although the majority faults the judge for suggesting that the em-
ployees had actually received the backpay due them as of the date of the
layoff, the key fact remains that before the layoff the Respondent knew
:. - Continued
JOHN H. COONEY, INC.
judge that the Respondent did not satisfy - its
burden of s howing that if would have laid off the '
employees when it did absent their protected con-
certed activity.
that the employees would not participate in the "arrangement" it pro-
posed Indeed, the employees were laid off immediately after Faga told
Secretary-Treasurer Krause that he intended to go to the shop to pick up
his weekly pay and his retroactive check •
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law-Judge. This
case was heard before me in Newark, New Jersey, on
February 28 and March 1, 1984. On a charge filed on
November 17, 1983,1 a complaint was issued on Decem-
ber 28 alleging that John H. Cooney, Inc. (Respondent)
violated Section 8(a)(1) of the National Labor Relations
Act (the Act). Respondent filed an answer denying the
commission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
to produce evidence, to examine and cross-examine wit-
nesses, to argue orally, and- to file briefs. Briefs were
filed by the General Counsel and by Respondent.
On the entire record of the case, including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New Jersey corporation, with an office
in Harrison, New Jersey, is, engaged -in the - installation
and service of plumbing, air-conditioning, and heating
systems, and, provides related services in the building and.
construction industry. The president of Respondent testi-
fied that during the 12 months preceding the issuance of.
the complaint, Respondent purchased goods in excess of
$50,000 from firms which obtained those goods from
suppliers outside the State of New Jersey. Accordingly, I
find that Respondent . is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
II. THE -ALLEGED UNFAIR LABOR PRACTICES.
A. The Issue' • :
The issue ' in this proceeding is whether Respondent-
violated the Act by laying' off two employees for failing
to turn back'to the Company payments required by the
New Jersey Department ; of Labor.. .. ' , _
i
B. The Facts '
I1.Background
Thomas Faga and Alan Hastie began- their` employ-•
ment with Respondent as pipefitters on December .10,
' All dates refer to 1983 unless otherwise specified
627
1982, and June 6, 1983, respectively. In August 1983 a
representative of the New Jersey Department of Labor
visited Respondent's 'office' and advised the Company
that it was underpaying its pipefitters. - Accordingly, in
September Faga and Hastie received wage increases of-
$3 an hour. In addition, Respondent was required to
make retroactive payments totaling $3920 for Faga and
$1438 for Hastie. Both employees were laid off on Octo-
bei
2. Request for reimbursement
Faga.testified that in August or September-1983 Juani-
ta Krause, secretary-treasurer of Respondent, told him
that a representative of the New Jersey Department of
Labor had informed the .Company that its pipefitters
were being underpaid and that, accordingly, Faga was
entitled to backpay. Faga immediately 'reported this dis-
cussion to Hastie. Faga further testified that in Septem-
ber or early October John Krause, president of Respond-
ent, told him that the New Jersey Department of Labor
representative again visited the Company and that "Alan
and I were entitled to funds retroactive to the date of
our employ and that. we were entitled to a higher hourly
rate. Faga testified, concerning the retroactive payment,
that Krause said:
He was willing to pay the taxes on it and us kick
the other amount back to him. . . He wanted
Alan and I to kick back the money. .'. .2
Q. Did he say that you? .
A. Yes. He wanted . . . he proposed that to me.
He sa[id] .. . "talk, it over with Alan."
Q. What did you_ say to Mr. Krause?
A. I said, "Okay, fine , I'll think about it'. '..
Faga testified that later on that day he discussed the con-
versation with Hastie, in the presence of another employ-
ee, Eddie Misek. • . • . .
On October 23 or 24 Krause telephoned Faga and
asked that he and Hastie come to see him in his Harrison
office. Faga testified that he went to. see Krause on Octo-
ber 25, at which time:;
[Krause] again restated his position that he.
wanted- us to pay -back to him the funds that we
were due, retroactive.- I said . . . "what if I don't?"
And he sa[id], "Well, if you don't give it back, you
go down, the road." • .
JUDGE MORRis: You could do what?
THE WITNESS: Go down the road. It's a slang ex-
pression that construction workers- use for being
fired. - ' -
Towards the ' end of. the meeting, James. Morris, field
superintendent . and an admitted agent of Respondent, ar-
rived: He and Faga then proceeded to the shop, at which
time they were joined by Hastie. The discussion-contin-
ued, and Hastie 'said in, the_ presence of both Morris and
2 Faga subsequently testified that- Krause may not have specifically
used,the words "kick back," but he did say, "I want you to give me the
money back." '
- 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Faga, "[I]f we kick the money back, we could get laid
off the. next day." On October. 28 Faga called Mrs.
Krause and informed her that he would be at the shop
later in the afternoon to pick up his weekly pay and his,
retroactive check. -Faga was laid off later that afternoon.,.
To a large extent Hastie corroborated Faga's testimo-,
ny. Hastie testified that at the end of -August or; begin-
ning of September Faga told him about the visit from the. _
representative of the New Jersey Department of Labor.,
In mid-September Faga told him that he had a conversa-
tion with Krause at,which time 7Krause wanted to make
an arrangement about paying this money back to him
and he would help. us with the Federal income taxis on
Hastie further 'testified- that in October he . and Faga
were called by Krause to attend a meeting:'Hastie came
late for the meeting,' arriving as Faga and Morris were
walking out of Krause's office. Hastie testified:
I walked into the shop and met Tom Faga and Jim
Morris ' walking out of the offices into the shop.
And I walked up to Tommy, and Tom had said to'
me that he had just-met with John Krause and John•
:_Krause said'-to -him that he wanted the, retroactive
money due to us from the State back to him and we.
could keep our jobs or if we decided to, take the,
money from the State,.we would just take the rest
of the m'oney' due us in pay.:.At'that •time,'Jim
Morris was standing there and,Tom asked him . .. .
what should we' do.
Jim said; well, just take some time and think "about
it; 'and 'Tom' turned arou'n'd -and said, well, what
gives ;me the guarantee that after- I pay' him back`;
the. money,- lie".just "doesn't -lay' me- off o'r get nd 'of
me anyway. And Jim turned around and`gaid '
well,' all-the owners are greedy. They want"every-
-thing ' for themselves. `And the • conversation just
-ended-and Tommy and I went-back to'work:
Hastie did not return; the money- to the -Company and=
was laid' off on October 28. " . ' _" .i; ', . . -
Morris testified that he heard -part- of the conversation
between Krause and Faga. He stated; `:Mr. Krause asked 7 - :,
Mr. Faga did he think about what they discussed in their,
conversation over the telephone about • returning : the-
money to the- company. And I- believe Mr, Faga said -he
was still thinking about it'at this,time.", Morris' testified.
that he and Faga walked out of rKrause's'office'into the.
shop,, where: they met Hastie. The:•three'men continued ..
the -discussion, concerning the repayment of--the money,
at-which point'Faga said; `If,I give; the ;money ;back, I'll;
have employment.?', Morris replied,- ",[T]here's •no r way,.-,
that I can- guarantee -anybody, employment.," Morris :testi-1'i
feed that -Hastie was present forrthatrpart, of- the conversa;
'•'•tion and, he knew that-Hastie `_was in the same situation.
Krause aestified• that he askedi.Faga if she. ;;wlshed',,t.0
return" -the.- retroactive money- ib the Company. He -fur-;
ther-testified'that in October'.he telephoned Faga asking,
him :to' come to see him: Krause conceded that. he Was',"!
aware that money was also owed to Hastie.
I credit the testimony of Faga, Hastie, and.Morris. ,To
a large extent "each corroborated the other's testimony. I t t
find that in August or September 1983 Juanita Krause in-
formed Faga that, he was entitled to backpay. Faga im-
mediately informed Hastie of this.- Several weeks later
John Krause asked Faga if he would be willing to reim-
burse the money to the Company. Faga told Krause that
he would think about it. On October 23 or 24 Krause
telephoned Faga and asked to see both Faga and Hastie.
On October 25 -Faga met with Krause at which time
Krause told him that if he did not reimburse the Compa-
ny, he would not be able to remain in Respondent's
employ. After the meeting with Krause, Morris and Faga
met with Hastie. The discussion concerning the reim-
bursement continued and -Morris was asked whether
there was any guarantee that if the two employees reim-
bursed Respondent they would not be laid' off. Morris re-
plied'that he could give no such guarantee. Faga and
Hastie did not make the'payments and were laid off on-
October 28.
3. Employment of Faga' and Hastie
Morris-testified that he hired Faga when he needed an-
other worker on' the Town of, East Orange Board of
Education project. He testified that he told, Faga at the
time I he was' hired that he -did not "know how long this.
Job is going to last.'' Morris testified that approximately
90 percent of Faga' s time was spent -on the East Orange
project. Fag4.conceded that the, bulk of his work was. for
the Town of East, Orange. -However, he also worked at
approximately six,other projects, including Liquid Car-
bonic, Chandler Sportswear Company, Beth Israel Hos-
pital; and Newark Airport.: Morris testified that the East
Orange job' was' completed on October 28 and that, ac-
cordingly, Faga was laid-off oh that day.
Morris' testified `that' he _ hired "Hastie -after receiving a
telephone 'a11 from Hastie's father during the summer of
1983.. 'During' the_ previous -summer Hastie's father hired
Morris' son and. Morris felt I was obligated to do him
the-same service." Hastie 'testified -that' he was not hired
specif dally .for the East Orange' job and l that .the only
thing" he was told'when he wag hired was that he would-
be paid pipef tier rates. -Morris corroborated this testimo-
ny and testified that he .only- told Hastie what his wage,
rate , would, be. Hastie's first job assignment after being
hired was with Frey Industries.
. 4. Availability of work after October 28
Faga testified' that the Company still c had work after'
October ; 28 ;including ' projects at -Beth Israel Hospital,"
Celanese, Sperry's, Twin Towers, and the Veterans Ad-
ministration•'Hospital.'•`This `was corroborated` by Hastie
who =also' testified 'that tin, mid' October: Morris told him
that there would` be a couple more weeks' work" of the
Montclair' Telephone Company.
Mori is'testified'that in' addition to'-the layoffs of Faga
and I'lasti'e five 'additional-empl'oyee's were terminated in
October.3 In November four more employees were ter-
3 Whitehead,! McNaughton,-and Tishuk were terminated on October
10 Felix was terminated on October 14 and Wermuth on October 18
JOHN H. COONEY, INC
initiated 4 and in December another four employees were
terminated . 5 Juanita Krause testified that for the week
ending October 9 Respondent had 19 employees; for the
week ending October 30, 14 employees; and for.the week
ending November 27, 8 employees Eight employees
continued working for the Company through the week .
ending December 11. For the week ending December. 18
the Company had four employees. Krause also testified
that for the week ending October 16 the Company had
five major jobs, for the week ending October 23, four to
five major jobs; and for the week ending October 30 the
number of major jobs'increased to six because of the ad-
ditional work for Celanese.
C. Discussion and Analysis
1. Concerted activity
In Meyers 'Industries, 268 NLRB 493, 497 (1984), the
Board:
In general, to find an employee's activity to be
"concerted ," we shall r̀equire that it be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self Once the activity is found to be concerted, an
8(a)(1) violation will be- fouiid if, in addition, the
employer knew of the concerted nature of 'the em-
ployee's activity, the concerted activity was pro-
tected by the Act, and the- adverse employment
action at issue (e.g., discharge) was motivated by
the employee's protected concerted activity.
In Meyers the Board overruled, Alleluia -Cushion Co.,.,
221 NLRB 999 (1979), and its progeny, stating, ; `[W]e
rely, instead, upon the `objective' standard of concerted
activity-the standard on which the , Board and courts
relied before Alleluia." 268 NLRB at 495. The Board re-
viewed several pre-Alleluia decisions,, including Traylor-
Pamco, 154 NLRB 380 (1965),, concerning which - the • _
Board stated that concerted activity was defined in terms,
of "employee interaction in support , of. a common S goal"
(supra at 494). , Similarly, in G. V. R.,' Inc., 201 -NLRB'
147 (1973), another pre-Alleluia decision cited by 'the
Board in Meyers, two employees reported to the United
States Army and the Department of Labor that their em-
ployer forced them to kick back portions of their wages.
The two employees discussed together their interviews
with the Department of Labor representative, the Army
questionnaires they were asked to complete; _ and the
kickbacks. The, Board- considered these activities . "con-,
certed" and found a violation of -Section ,8(a)(1) of.the .
Act.
In the instant proceeding - both--Faga + and Hastie- dis-
cussed Krause ', s request to reimburse ; the Company and-,
they considered together, what, ,their response should be.
On October 23 or 24 when Krause , telephoned Faga 1 and '
asked him to, come to a meeting concerning the reim-
bursement , Krause specifically told';Fa 'a to also invite
4 Bisceglie was terminated on November 1, Picone on November 2,
and Picca and Misek on November 9
5 McEnroe, Folinusz, Patterson , and Drumgould were all , terminated
on December 9 1 - f ' ' ' , ' i -
629
Hastie to the meeting . Krause testified he was aware that
not only was Faga involved in the reimbursement but so
was Hastie . Finally , after the meeting between Faga and
Krause , Morris , an admitted supervisor and agent, met
with both Faga and Hastie at which time the matter of
-reimbursement was further discussed . On being. asked
whether there was any assurance that the, two, employees
would not be laid off even if they made the reimburse-
ment , Morris replied that he could give no such guaran-
tee. In line with Traylor-Pamco, supra, I believe that the
activities of Faga and Hastie constitute "employee inter-
action in support of a common goal." I conclude that the
activities of the two employees constitute "concerted"
activities within the definition of Meyers and conform to
the-criteria established in the pre-Alleluia decisions. In
addition , the record establishes that both Krause and
Morris knew of the concerted nature of the two employ-
ees' activities.
2. Layoffs
Respondent argues that the layoffs of Faga and Hastie
were motivated by legitimate business considerations and
would have taken place even in the absence of the pro-
tected conduct. (Br. 10.) Under Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983),
the Board requires that the General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the
employer 's decision . Once this is established , the burden
shifts to the employer to . demonstrate that the "same
action would have taken place even in the absence of the
protected conduct."
I believe that the General Counsel has made a prima
facie showing sufficient to support the inference that
protected conduct , was a motivating factor in Respond-
ent's decision to lay off Faga and Hastie. I have found
that on October 25 Krause told Faga that if he and
Hastie did not reimburse the Company they would be
terminated . The two employees did not reimburse Re-
spondent and they were laid off 3 days later, on October
28.-,
Respondent contends that Faga and Hastie were laid
off because the East Orange job terminated on October
28. Respondent also argues that its field work force de-
clined from • 19 to 4 employees during the period begin-
ning. October 9-'and tending December 18. While the
record' indicates that the East Orange job ended on Oc-
tober 28, the-record also shows that neither Faga nor
Hastie ' worked exclusively at the East Orange project.
Faga worked at approximately six other projects as well,
and • Morris conceded that Hastie was never told that, he
was assigned only to the. East Orange •job. Indeed, Has-
tie's first assignment after beginning his employment was
with. Frey Industries . Respondent's brief concedes and .
the Company 's witnesses so testified that both Faga and
Hastie were "excellent. and valued - employees." (Br. 11.)
While the record indicates that the number of employees
decreased from 19 on October 9 to 4 on December 18,
the' record also `shows'that on November 6 there were
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still- 12 employees; on November 20, 9 employees; and on
December 11, 8 employees. In, fact, the record also
shows that the Company's major jobs increased for the
week ending October 30. Inasmuch as both Faga and
Hastie were "excellent and valued" employees, it could
reasonably have been expected that were it not for their
failure to reimburse the Company, they would, have been
retained beyond October 28, during which time a signifi-
cant number of employees remained with the Company.
I believe that Respondent ' has not satisfied its burden
of demonstrating that as of October 28 Faga and Hastle
would have been laid off were it not for the protected
conduct. As stated in Allied Lettercraft Co., 272 NLRB
612 (1984), "Evidence-of subsequent developments is ir-
relevant to-show the validity of these layoffs because the
Respondent could.not have been motivated by what it
did not then know" (supra, fn. 3). While Respondent
may have indeed laid off the two employees by Decem-
ber 18, when only four employees remained, the record
has not been sufficiently developed to make a finding in
that regard. Accordingly, I recommend that any finding
with respect to whether or when Faga and Hastie would
have been laid off be left for the compliance stage of this
proceeding. -
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. ..
2. By laying off Thomas Faga and Alan Hastie for ac-
tivities protected by the Act, Respondent has engaged in
unfair labor practices within the ' meaning of Section
8(a)(1) of the Act.
-3. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act. -
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take fur-
ther action necessary to effectuate the policies of the
Act.
- Respondent having laid off Thomas, Faga and Alan
Hastie in violation of the Act, I find it necessary to order
Respondent to offer them full reinstatement to their
former positions or, if'such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings that they may have
suffered from the time of their.layoffs to the date of Re-
spondent's offers of reinstatement. Backpay shall be com-
puted in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest com-
puted in the manner prescribed in Florida Steel Corp, 231
NLRB 651 (1977).6
[Recommended Order omitted from publication.] -
6 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962) '