M. J. Electric

National Labor Relations Board - Board Decisions

Jul 23, 1993

311 N.L.R.B. 1177 (N.L.R.B. 1993)

1177
311 NLRB No. 151
M. J. ELECTRIC
1 The Respondent’s request for oral argument is denied because the
record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
2 The Respondent excepts to the judge’s recommended remedy of
reinstatement and backpay for unlawfully laid-off employees John
Ricketson and David Denson on the ground that the issues relating
to reinstatement and backpay have not been fully litigated and that
further hearing is necessary. We find that the issues raised by the
Respondent’s exceptions are best left to compliance. The Respondent
will be permitted at the compliance stage of this proceeding to sub-
mit evidence on the question or whether Ricketson or Denson would
have been transferred or reassigned to other jobsites if it were not
for the unlawful discrimination against them. See Dean General
Contractors, 285 NLRB 573 (1987).
1 The record should reflect that at p. 114, LL. 9–10 of the tran-
script, Risberg testified he was business manager.
M. J. Electric, Inc. and John P. Ricketson. Case 30–
CA–11736
July 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 4, 1993, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, M. J. Electric, Inc., Iron
Mountain, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Rocky L. Coe, Esq., for the General Counsel.
Mark W. Schneider, Esq. and Tracy Wessell, Esq., of Min-
neapolis, Minnesota, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case as
heard at Wausau, Wisconsin, on November 19 and 20, 1992.
The charge was filed on April 17, 1992, by John P.
Ricketson, an individual. The complaint, which issued on
May 18, 1992, alleges that M. J. Electric, Inc. (the Company
or Respondent), violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act as amended. The gravamen of the
complaint is that the Company allegedly threatened employ-
ees Ricketson and David Denson with layoff, and laid them
off, because of their union activity in filing and pursuing in-
ternal union charges against another employee. The Com-
pany’s answer denies the commission of the alleged unfair
labor practices. All parties were afforded full opportunity to
participate, to present relevant evidence, to argue orally and
to file briefs. General Counsel and Respondent each filed a
brief.
On the entire record in this case1 and from my observation
of the demeanor of the witnesses, and having considered the
arguments and briefs of the parties, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with an office and place of
business in Iron Mountain, Michigan, is engaged in business
as a commercial and industrial electrical contractor. In the
operation of its business, the Company annually performs
services valued in excess of $50,000 in States other than
Michigan. I find, as the Company admits, that it is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local No.
388, AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: The Company’s Operations,
Supervisory Hierarchy, and Alleged Animus
The Company is a large-scale electrical contractor, and
specializes in electrical work for the paper mill industry.
Consolidated Paper Company is a major customer. Since Jan-
uary 1990 Robert Biallas has been company vice president
for field operations, and in overall charge of those oper-
ations. He reports directly to Company President David
Brule. The Company’s project managers (and superintendents
on small projects) report to Biallas. On large projects, the
project manager is assisted by superintendents, each of whom
is responsible for an area of work. The superintendents lay
out work, direct day-to-day operations, and work closely
with field personnel. Below the superintendents are foremen,
each of whom supervises a crew of journeymen and appren-
tices, usually numbering from 5 to 12, with an average of
8. The events which gave rise to this proceeding occurred in
connection with the Consolidated Paper No. 16 paper ma-
chine project in Wisconsin Rapids, Wisconsin. The project
ran from about February 18, 1991 to mid-July 1992. At its
peak the Company had about 100 employees on the job, or-
ganized into some 50 work crews. Oscar J. Boldt Company
was general contractor over the electrical work. The Com-
pany is signatory to collective-bargaining agreements with
IBEW and the Union. The Company obtains its employees
through the Union’s hiring hall, but has the contractual right
to reject referred personnel. Many of the employees, and
most on large jobs like No. 16 paper machine, are travelers,
members of IBEW locals from throughout the United States.
It is undisputed that the Company is not contractually obli-
gated to consider seniority in layoffs, and that the Company
does not have any practice of laying off employees by in-
verse order of seniority.
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates hereafter are in 1991 unless otherwise indicated.
Leonard Bal was project manager on the No. 16 paper ma-
chine job. Bal, like Biallas, is a member of an IBEW local.
Bal, by his own testimony, was principally responsible for
selection of Ricketson and Denison for layoff on November
20, 1991. Bal testified that he never threatened any employee
with layoff for not withdrawing a grievance. Vice President
Biallas testified in sum that the Company has rehired em-
ployees who filed unfair labor practice charges or grievances
against it. General Counsel presented testimony to show that
Bal has in fact made such threats. In early 1990 electricians
David Hoover and Ronald McEachen were working on a
company project for Consolidated Paper (No. 34 paper ma-
chine) in Stevens Point, Wisconsin. They had been referred
through the Union. The Company commenced a project for
another paper mill firm in Tomahawk, Wisconsin. Hoover,
McEachen, and other employees wanted to transfer to the
Tomahawk job. Project Manager Bal told Union Business
Manager Peter Risberg that transfers would not be allowed.
Hoover, McEachen, and another employee then tried to get
around Bal’s refusal. They quit their jobs, re-registered at the
union hall, and were referred to the Tomahawk job. Bal re-
fused to accept the referrals. He told the employees that
under a company-union agreement, employees who quit a
company project were ineligible for rehire for 90 days. Hoo-
ver and McEachen subsequently returned to work at the Ste-
vens Point project. Risberg and Bal testified in sum that
Risberg persuaded the Company to take them back, although
it was not obligated to do so. Hoover testified in sum as fol-
lows: After quitting he filed a grievance with the Union
against the Company over its refusal to allow transfer to
Tomahawk. The grievance was still on file and being proc-
essed when he returned to Stevens Point. About April 12 Bal
told him that if he did not withdraw the grievance he would
be laid off and not work again for the Company. Hoover
spoke to Risberg, who indicated that the grievance had little
chance of success. Hoover withdrew the grievance, but wrote
a letter for the Union’s file, describing the alleged threat.
Hoover retained a copy of the letter (presented in evidence)
but did not have a copy of the grievance. He later worked
for the Company on another job. McEachen testified in sum
as follows: After returning to Stevens Point he filed a griev-
ance over the Company’s refusal to allow transfer to Toma-
hawk. About April 1 Bal told him that if he did not drop
the grievance he would be terminated. The Union advised
McEachen that the grievance had little chance of success.
Because of Bal’s threat, McEachen withdrew the grievance.
He subsequently worked again for the Company in 1990. He
did not have a copy of the grievance. Bal testified that he
did not threaten the employees with layoff, and they did not
file any grievance. He further testified that Hoover may have
worked subsequently for the Company, but Consolidated
Paper caught McEachen stealing and would not permit his
rehire. Business Manager Risberg, who was presented as a
witness by both General Counsel and the Company, testified
that he did not recall whether Hoover and McEachen filed
grievances, or that he filed a statement from the employees,
although the Union’s file might contain such documents.
Neither General Counsel nor the Company requested produc-
tion of the Union’s file concerning the matter. Hoover and
McEachen are both local union members living in Wis-
consin, and at the time of the present hearing were employed
by other electrical contractors in Wisconsin.
I credit Hoover and McEachen. As indicated, Bal testified
that the Company would not rehire McEachen. However,
Hoover, who also lives and works in the Company’s area of
operations, remains available for employment by the Com-
pany. He has no interest in the present case, and no reason
to testify falsely against the Company. His testimony is enti-
tled to special weight. This hearing was conducted under a
rule of sequestration, and Hoover and McEachen substan-
tially corroborated each other’s testimony. I do not agree
with the Company’s argument (Br. 16) that if Bal were
discriminatorily motivated, it would make no sense to rehire
Hoover at Stevens Point. Bal may have assumed that after
returning to Stevens Point, Hoover would withdraw his
grievance. However he did not do so. In crediting the testi-
mony of Hoover and McEachen concerning Bal’s threat, I do
not rely on Hoover’s purported copy of a letter or file memo
to the Union. As General Counsel never called for produc-
tion of the original, I am not inclined to attach any evi-
dentiary significance to the purported copy. As both General
Counsel and the Company could have, but did not, call for
production of the Union’s pertinent file, I have not drawn
any adverse inference against either for their failure to do so.
Rather, my determination is based on the credibility of the
employees’ testimony. I find that the incident may properly
be considered as background evidence of company policy
and animus toward employees who file charges which chal-
lenge the Company’s personnel practices. The question is
not, as argued by the Company (Br. 12), one concerning
Leonard Bal’s character. Rather, as indicated, the question
concerns company policy and alleged animus toward em-
ployee union activity. Therefore the threats to Hoover and
McEachen are evidentiary with respect to the present alleged
unfair labor practices. See NLRB v. My Store, Inc., 345 F.2d
494, 497–498 (7th Cir. 1965), cert. denied 382 U.S. 927.
B. The Alleged Threat and the Layoff of Ricketson
and Denson
John Ricketson, a journeyman inside wireman since 1966,
and member of the Gainesville, Florida IBEW local, first
worked for the Company in 1990 at its Champion project in
Iron Mountain, Michigan. He left to take a job near home,
but the job did not materialize. He returned and was referred
by the Union to the Company’s Stevens Point project, where
he worked from August 8 to early October 1990. Ricketson
worked in a crew of 8 to 10 under Foreman Dean Miller.
Superintendent Roger Hunt asked Ricketson and two other
crewmembers whether they wanted to transfer to the Con-
solidated Paper wet lap mill project in Wisconsin Rapids.
The other crewmembers were laid off. Ricketson testified
that Hunt told the three he was offering the transfer because
they did a good job. Miller testified that Ricketson was of-
fered a transfer because he was one of the best workers.
(Hunt, not now employed by the Company, was not called
as a witness). Ricketson worked at Wisconsin Rapids until
laid off on November 30, 1990. He was not one of the last
laid off, but the project was near completion. On May 8,
1991, the Union referred Ricketson to the No. 16 paper ma-
chine project in Wisconsin Rapids, where he worked until
laid off on November 21.2 He occasionally served as acting
foreman. Ricketson did not receive any disciplinary warnings
1179M. J. ELECTRIC
prior to that job. David Denson, also a journeyman inside
wireman, is a member of the Houston, Texas IBEW local.
He was referred by the Union to the No. 16 paper machine
project on June 18, and worked there until laid off on No-
vember 21. Ricketson and Denson began working in foreman
Dennis Dorski’s crew, but Ricketson, in June, and Denson at
a later time, transferred into Dean Miller’s crew (which was
their preference). Miller’s crew worked under area Super-
intendent Errol Steen.
Ricketson first met Sam Clark, then a journeyman elec-
trician, in August. The Company subsequently promoted
Clark to foreman. William Nagy (now a project manager)
was his area superintendent. Ricketson testified that begin-
ning in August, he observed Clark working off the clock.
Ricketson complained to the union steward. Ricketson and
Denson testified in sum that in mid-October they and other
employees observed Clark working before the 7:30 a.m.
starting time and after the 4 p.m. quitting time. They pro-
tested to Clark. Ricketson prepared and filed with the Union
an internal union charge, dated November 4 alleging that
member Clark violated the IBEW constitution and the
Union’s contract by ‘‘working below scale’’ (i.e., without
pay) at 7:13 a.m. and 4:03 p.m. on October 13 (a Sunday).
Denson and another employee (Steve Fenton) signed the
charge as witnesses. The Union mailed a copy of the charge
to Clark (received by him on November 12), together with
notice of hearing by the Union’s trial board, scheduled for
November 19 at 8 p.m. The Union did not give notice to or
request the Company to state its position. Nevertheless Clark
presented a letter to the Union from Project Manager Bal.
Bal enclosed time reports for the week ending October 13,
indicating that no employees worked on October 13. How-
ever Bal also asserted that to his knowledge, Clark did not
violate the local contract or the IBEW constitution and by-
laws. At the union hearing Ricketson admitted that he mis-
dated the violations, asserting that the violations actually
took place on October 15. The trial board found Clark not
guilty of the charges. Normally the charged party receives
notice of the decision within 2 or 3 days following the hear-
ing.
As indicated, Ricketson and Denson were laid off on No-
vember 21. On December 4 Ricketson refiled his charge, this
time alleging that the violations occurred on Tuesday, Octo-
ber 15. The Union granted one request by Clark for a delay,
and scheduled the hearing for January 14, 1992. On January
17, 1992, the trial board issued its decision, finding Clark
guilty ‘‘by his own admission’’ only of working after quit-
ting time. The board fined Clark $125, but suspended $100
of the fine, conditioned on no further similar violations for
1 year. Meanwhile in mid-December, the Union again re-
ferred Ricketson to the No. 16 paper machine project, the
Company having called for about 17 additional personnel,
Ricketson reported on December 16, but Project Manager
Bal, invoking the Company’s contractual right, refused to ac-
cept him. Ricketson testified, but Bal denied, that Bal said
that anyone in the November 21 layoff would not be hired.
Bal testified that he rejected four referred employees, and re-
jected Ricketson because he was recently laid off and had a
work rule violation in his file.
Denson testified in sum as follows: On the evening of No-
vember 20 he and Steve Fenton went to the Body Shop bar,
a strip joint in Wisconsin Rapids. Bal was there, drinking,
when they arrived. Denson heard rumors of a layoff, and was
concerned about whether he should sign a new lease for his
trailer. About 10 p.m. he asked Bal whether he would be in
the layoff the next day. They talked about the charges
against Clark. Bal said if they dropped the charges they
would not be in the layoff. Denson replied: ‘‘That dog won’t
hunt.’’ Bal commented that the first chance he got, Dean
Miller was gone too, but he gave no explanation. In his in-
vestigatory affidavit, Denson stated that he did not comment
when Bal referred to dropping the charges. Denson further
testified in sum as follows: The following morning he told
Ricketson about his conversation with Bal. Ricketson said he
would not withdraw the charges. That afternoon Super-
intendent Steen told them they were being laid off. Ricketson
asked if it was about the charges. Steen said, ‘‘You know
why.’’ Ricketson insisted he wanted to hear it from Steen,
whereupon Steen admitted it was because of the charges. In
his affidavit, Denson stated that ‘‘Steen just repeated that we
knew why.’’ Denson testified that after the layoff he left
town without signing the Union’s out-of-work list, going to
find a job in Tennessee. In fact, Denson signed the book on
November 22. Ricketson testified in sum as follows: Denson
told him about the conversation in the Body Shop bar.
Ricketson said he would not drop the charges. About 11:30
a.m. Foreman Miller told Ricketson he was in the layoff, and
that Steen said it was because of the charges. About 1:30
p.m. Steen told Ricketson, in the presence of Denson and
two other employees, ‘‘I guess you know’’ about the layoff.
Ricketson said he wanted to hear it from Steen, whereupon
Steen answered: ‘‘You know it is about the charges against
Clark.’’ Ricketson insisted he was not dropping the charges.
Steen said the Company would have the charges postponed
as long as possible to where Ricketson wouldn’t be around.
Ricketson replied that they couldn’t starve him out. After his
layoff Ricketson signed the union book and as indicated, was
again referred to the Company. In January 1992, Dean Miller
was demoted from foreman and eventually was laid off about
2 weeks before the project was completed (after his entire
former crew was laid off). He testified as a General Counsel
witness. Miller testified that on the morning of November
21, Steen told him that Ricketson and Denson were being
laid off because of the charges against Clark. Miller further
testified that Steen added that Bal told him that Miller would
have been laid off if he had not been a local wireman and
foreman, because of his involvement as a witness in the trial
board hearing.
Project Manager Bal testified in sum as follows: In mid-
November Superintendent Nagy told him that charges were
filed against Sam Clark, that Clark was being harassed, and
received anonymous phone calls and threats of property dam-
age. Nagy did not know who filed the charges or harassed
Clark. Bal spoke to Union Steward Don Schmude and to
Clark, who refused to give details. However Clark told him
that the charges ‘‘were originally filed on a Sunday,’’ and
he asked Bal for a letter to the trial board verifying that no
company employees worked on that Sunday. Therefore as in-
dicated, Bal gave Clark the letter. At the time Ricketson and
Denson were laid off, Bal did not know who filed the
charges against Clark. On the evening of November 20 Bal
worked until about 7:30 or 7:45, and then went to the Body
Shop bar with Nagy and two other supervisors. Bal was seat-
ed next to Nagy at the bar. Denson came over to Bal. He
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wanted to know if he was included in the pending layoff. Bal
knew that Denson had been added to the layoff list. Bal said
that affected employees would get 2 hours’ notice, as pro-
vided in the contract. Denson talked about his problems, in-
cluding his trailer lease, and kept asking about the layoff. Bal
repeated his answer. Denson became angry. He questioned
Bal’s qualifications as a supervisor, and asserted that Bal dis-
criminated against good union employees. Nothing was said
about the charges against Clark; and Bal did not make the
statement attributed to him by Denson. Nagy remained seated
next to Bal during this conversation. Another employee ap-
proached Nagy. They argued about the fact that Nagy was
not a union member. Nagy summoned the bar manager and
they escorted the employee to the door. Nagy testified in
sum as follows: In mid-November, prior to the layoff, Clark
told him that he didn’t know if he could continue on as fore-
man. Clark complained that internal union charges were filed
against him for starting early and quitting late, he was get-
ting pressure, and ‘‘things were happening to him.’’ Later he
said he was getting phone calls at home. Clark refused to say
who filed the charges. Nagy asked him to remain as foreman,
and reported the conversation to Bal. As of November 20
Nagy did not know who was involved in the charges. That
evening Nagy and Bal arrived at the Body Shop bar before
6 p.m., and remained about 4 hours. Denson came in about
1 or 2 hours after they arrived. He went over to them, and
asked Bal if he was going to be laid off the next day, ex-
plaining his personal problems. Bal said that if there was a
layoff the employees would get their 2 hours’ notice. Denson
persisted and Bal repeated his answer. Nagy did not hear Bal
threaten Denson concerning the layoff. However Nagy went
to the bathroom, and thereafter went to the other end of the
bar, but Bal and Denson were still talking. Nagy remained
in the bar about one-half hour after Denson left. Super-
intendent Steen, who was involved in the layoff decisions,
testified in sum as follows: He did not know as of November
21 that internal union charges had been filed against Clark,
but he heard rumors about such a charge, possibly before the
layoffs. About 1 or 1:30 p.m. on November 21 he told Fore-
man Miller and the affected employees in his area, including
Ricketson and Denson, about the layoffs. He did not give ad-
vance notice to Miller. He did not recall if the employees
said anything. Steen in his testimony did not deny making
the statements attributed to him by Ricketson, Denson, and
Miller.
I find incredible the testimony of Bal, Steen, and Nagy
that as of November 20 they did not know who filed the
charge against Clark. (Clark, who was not employed by the
Company at the time of this hearing, was not called as a wit-
ness.) If Clark did not want the Company to know who filed
the charge, then it would make no sense for him to complain
to higher supervision about the charge, particularly when he
accompanied this complaint with additional assertions of har-
assment, coupled with assertion that as a consequence he
might not be able to continue as foreman. It is evident from
Nagy’s testimony that Clark expected the Company to do
something about the alleged harassment. It is also evident
from the testimony of Bal and Nagy, that Clark informed
them of the substance of the charge. As indicated, Bal did
not simply provide Clark with timesheets for October 13.
Rather, he prepared a letter for the trial board in which he
asserted that to his knowledge, Clark did not violate the local
contract or the IBEW constitution and bylaws. It is unlikely
that Bal would do so, particularly (as he did) in his official
capacity as company project manager, without having seen
the charge and consequently knowing whereof he spoke. As
indicated, Steen in his testimony did not deny the testimony
of Ricketson, Denson, and Miller that he told them Ricketson
and Denson were selected for layoff because of the charge.
There are credibility problems on both sides with respect to
statements allegedly made by Bal and Steen on November 20
and 21. As indicated, Denson’s testimony was inconsistent in
several respects with his investigatory affidavit. I am not in-
clined to dismiss these inconsistencies on the ground that his
affidavit was taken telephonically. Denson had an oppor-
tunity to read and correct his affidavit before signing it. On
the other side, Nagy contradicted Bal’s testimony that Nagy
was present throughout his conversation with Denson. Nagy
indicated that he did not overhear most of their conversation.
Bal and Nagy also differed as to when they arrived at the
Body Shop bar. Nagy’s testimony indicates that Bal had been
drinking for some time before Denson arrived, and con-
sequently might be more inclined to talk freely. I have no
comparable reservations with Ricketson’s testimony, except
insofar as it conflicts with Denson’s affidavit. Ricketson in
his affidavit did not refer to his asserted conversation with
Foreman Miller on the morning of November 21. However,
he did refer to rumors on the job that he and Denson would
be laid off because of the charge against Clark. As Miller
had no authority in selecting employees for layoff, Ricketson
could have been referring to Miller’s statement. However, in
resolving these questions of credibility, I find particularly
critical and significant the Company’s assertions concerning
its professed reasons for selecting Ricketson and Denson for
layoff. As will be discussed, the company witnesses’ testi-
mony in this regard demonstrates an overall lack of credi-
bility with respect to the ultimate merits of this case. In par-
ticular, key elements of the Company’s assertions are contra-
dicted by its own professed records.
Vice President Biallas testified in sum as follows: In Sep-
tember Consolidated Paper requested the Company to reduce
its jobsite work force by 10 percent. The request was
precipitated by Consolidated Paper’s complaints about em-
ployee work rule violations and insufficient productivity.
Biallas was concerned because the Company could not cut
its work force and still meet the construction schedule. (In
fact, the job was completed about 3 months after the sched-
uled completion date.) Biallas agreed to the reduction in
force, but in fact the Company did not lay off any employ-
ees. On November 19 or 20 General Contractor Boldt in-
formed Biallas that Consolidated again requested a 10-per-
cent reduction in the work force, and to ‘‘try to weed out
the worst non-productive job rule offenders.’’ This time the
Company promptly complied, and on November 21 laid off
31 day-shift and 3 night-shift employees. Project Manager
Bal conducted the layoff. In selecting employees for layoff,
the Company considered ‘‘violation of jobsite rules, our least
productive workers, absenteeism, tardiness, safety violators,
and hardship cases if requested.’’ Generally the Company
tried to keep better employees. After the layoff Bal and
Steen told him that Ricketson and Denson had poor attitudes,
but this was not a reason why they were selected for layoff.
Biallas understood, but did not personally know, that both
employees abused work rules. Denson was selected for layoff
1181M. J. ELECTRIC
in part because of poor productivity, and presumably because
of an incident in early July involving damage to a wire
cable. After the incident Biallas instructed Bal to demote
Dean Miller from foreman and lay off all of the employees
involved with the cable ‘‘when the layoffs apply.’’
Project Manager Bal testified in sum as follows: He fol-
lowed the Company’s usual procedure for layoffs. He pro-
vided area superintendents with the names of employees hav-
ing work rule or safety violations. He checked with union
steward Schmude to determine if there were any employees
with hardship problems who wished to volunteer for layoff.
The superintendents would return to Bal with their rec-
ommendations. They tried to spread the layoffs as evenly as
possible throughout the different areas. In selecting employ-
ees for layoff he considered ‘‘productivity, warnings, safety
violations, absenteeism, accident reports’’ and hardship (vol-
unteer) cases. He selected Ricketson because of work rule
violations, abuse of morning coffeebreak, his involvement
with the cable pull, and Superintendent Steen’s opinion of
Ricketson’s performance. He selected Denson because of a
work rule violation in his file, Bal believed he was loafing
on the job, and he was involved in the termination end of
the cable pull. However, Bal conceded that Denson was not
in Miller’s crew at the time of the cable pull, and he had
no documentation as to who or what crew worked on termi-
nation of the damaged wire cable. In a statement to the
Board’s Regional Office, Bal stated that he laid off
Ricketson and Denson ‘‘based on poor work performance, at-
titude and work rule violations.’’ Bal testified that by ‘‘poor
attitudes,’’ he meant lack of cooperation in regard to fol-
lowing work rules. He testified that Superintendent Steen
told him that Steen repeatedly warned Ricketson and Denson
to improve their productivity and not abuse break times. Bal
had no documentation of the alleged warnings. Bal testified
that production by Miller’s crew was below average. How-
ever he also testified that overall production on the project
was poor. In support of Bal’s testimony, the Company pre-
sented in evidence two weekly productivity reports for the
Miller crew in November, purporting to show that their pro-
ductivity was substantially below industry and company
standards. However the Company did not proffer such
records for other crews. Consequently, for purposes of this
case, the reports have no evidentiary value, particularly in
light of Bal’s testimony that overall project production was
poor. Bal also testified that in mid-December he called for
about 17 more employees because the Company was able to
persuade the owner that it needed more personnel in order
to meet the project schedule.
Then Superintendent Steen testified that Bal decided who
would be laid off, and placed Ricketson and Denson on the
list because they had work rule violations. Steen further testi-
fied that he made recommendations. However, he did not
claim that he recommended Ricketson or Denson for layoff,
or gave either an unfavorable evaluation, except insofar as he
followed Bal’s instruction to put employees with recorded
warnings on the list. Bal conceded that he recommended
Ricketson or Denson for layoff, or gave either an unfavor-
able evaluation, except insofar as he followed Bal’s instruc-
tion to put employees with recorded warnings on the list. Bal
conceded that he recommended Ricketson to Miller as an
acting foreman, and had no problem with Ricketson when he
served as acting foreman. Steen denied that he gave repeated
warnings to Ricketson and Denson. He testified that he
talked to Miller and other foremen, and to crews as a whole
about productivity, the cable pull and work times, ‘‘because
the owner was always pushing, pushing, pushing,’’ and that
these discussions continued after the layoff. At no time prior
to November 21 did he direct Miller to take any action
against Ricketson or Denson, and Miller never complained to
him about their performance.
The Company presented in evidence an organizational
chart purporting to show the makeup and other information
concerning the Company’s project work force as of Novem-
ber 21. The chart indicates a near total lack of correlation be-
tween recorded disciplinary warnings and employees selected
for layoff. The chart indicates that 28 employees were laid
off that day, and that 30 employees had recorded warnings.
Only three of the laid-off employees (Ricketson, Denson, and
one other) had recorded warnings. Four employees in Mil-
ler’s crew (Ricketson, Denson, Deutsch, and Engel) and Mil-
ler himself, had indicated recorded warning letters. The
Company’s witnesses offered no explanation as to why
Ricketson and Denson rather than Deutsch and Engel were
laid off. Steen testified that he asked that some employees
slated for layoff be kept on, but he did not indicate that he
expressed any preferences among Miller’s crew. The Com-
pany in its brief (p. 20) suggests that the choice had some-
thing to do with the fact that Ricketson and Denson ‘‘were
from out of the area.’’ However Deutsch and Engel were
also travelers (Deutsch from Texas and Engel from Michi-
gan), and the Company’s witnesses indicated that Bal did not
take this factor into consideration. The Company also offered
conflicting explanations as to why only two of the five per-
sonnel in Miller’s crew with purported written warnings were
selected for layoff. The Company argues on one hand (Br.
20) that ‘‘Dean Miller’s crew, which had a record of low
productivity, was most likely to be a target of the 11/21/91
layoffs.’’ But the Company also argues (Br. 19) that ‘‘those
ultimately laid off were spread evenly throughout the
crews,’’ and ‘‘Bal did not want to lay five out of nine indi-
viduals off of one work crew because such action would im-
pact productivity and continuity more than M. J. Electric
could tolerate.’’ However Biallas testified that it was com-
pany practice in reductions in force to disperse crews, laying
off some but transferring the better employees. Indeed the
Company did just this when it transferred Ricketson in 1990.
The company witnesses’ testimony indicates that the pur-
ported written warnings to Ricketson and Denson related to
a single incident on September 19, the Company knew that
Denson was not guilty of any infraction, Ricketson and other
crewmembers committed no infraction or at most a technical
and insignificant infraction, the alleged warnings, if given at
all, were handed out indiscriminately in order to appease the
general contractor, and the Company at the time attached no
significance to the entire episode. Keith Zimmerman was
General Contractor Boldt’s project manager. His responsibil-
ities included supervision of the Company’s performance.
Zimmerman, who was presented as a company witness, testi-
fied with regard to the incident in sum as follows: He was
checking around the MCC coder area when he saw what ap-
peared to be suspicious activity. Two employees were work-
ing on a ladder, but others were starting their morning break,
although it was only 9:20 and break time began at 9:30. He
may have said: ‘‘You’re cutting it a little close, fellows.’’ He
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wrote down the hardhat numbers of four to six company em-
ployees, and employees of other contractors, on a clipboard
he carried with him. He also carried a walkie-talkie. The
foremen came in. Zimmerman told him he would report the
numbers. Zimmerman gave the sheet with numbers to
Biallas, saying he should do something about it. Biallas said
he would take care of it. Biallas testified in sum as follows:
At about 9:25 a.m. Zimmerman told him that Foreman Miller
and his crew were abusing the morning coffeebreak. Zim-
merman gave him a list of hardhat numbers, and told him
to take care of it. Biallas said he would. He told Bal to write
up Miller and each of his crew for abusing the morning
break. Bal subsequently returned, reporting that there was
more than one crew of electricians, and he wanted to identify
the employees observed by Zimmerman. Biallas gave Zim-
merman’s list to Biallas. Thereafter some crewmembers were
given written warnings. The Company presented in evidence
a written warning to Ricketson, signed by Bal and acknowl-
edged by union steward Schmude, but not Ricketson, and a
written warning to Denson, signed by Bal and acknowledged
by both Schmude and Denson. Bal testified in sum as fol-
lows: About 9:30 a.m. Biallas told him that Zimmerman ob-
served Miller and his crew taking an early break, and to
issue warning letters to Miller and his whole crew. Bal sum-
moned Foreman Miller, who admitted that the accusation
was true. Bal told him that this could cause problems for the
Company. Bal wrote out the warnings, and summoned Steen
and Schmude. Some crewmembers denied being in the area.
Bal said he would go back, and if Biallas and Zimmerman
lacked proof, he would not write warning letters. Bal asked
Biallas if Zimmerman had hard hat numbers. Biallas gave
him a list of numbers. Bal tore up the warnings for those not
on the list, and issued warnings to those on the list. He gave
a warning letter to Ricketson, but did not recall what he said.
Steen testified in sum as follows: On September 19 Bal told
him he had warning letters for certain named employees, and
that Boldt got their numbers. Steen accompanied Bal, and
with steward Schmude present, issued the warnings. He
could not recall what was said when the warnings were
issued. Steen did not, in his testimony, indicate that Bal
brought warnings more than one time. No witness identified
the employees whose hardhat numbers were on the purported
list, and the list was not presented in evidence.
Then Foreman Miller testified in sum as follows: His crew
was working when Zimmerman came into the area. Denson
and Engel were out on the lift, and Ricketson and three other
employees were in the area. Zimmerman did not write down
any numbers. Later Bal told him he had to write up the
whole crew. Miller said he did not think the employees
abused time. He told Bal the employees were 30 seconds
early, which was not true, and that they were in a work area.
Bal said he had to write up somebody, because Zimmerman
told him. He brought warnings which he gave to employees,
including Denson. Bal told Miller that if the men were good
he would tear up the warnings in a couple of days. Miller
believed the warnings were not warranted. Ricketson testified
in sum as follows: Zimmerman came into the area about 9:29
a.m. Ricketson, Miller and four other employes were present.
Denson was outside on a lift. Zimmerman looked around and
said: ‘‘You’re cutting it a little green, ain’t you fellows?’’
But they were working. Zimmerman was carrying a radio,
but did not have a clipboard. Later steward Schmude brought
for his signature, a warning letter for abusing the morning
break. Ricketson said he would not sign until he talked to
Bal. He went to Bal, but before he had a chance to speak,
Bal stuck the warning letters under his arm and said, ‘‘Forget
it.’’ Ricketson understood that the warnings were not out-
standing. Denson testified in sum as follows: He was work-
ing on the scissor lift with Engel, and was not present when
Zimmerman came into the area. He heard about the incident
when he took his break. Later Miller and Schmude came
around with the warning letters. Miller told him: ‘‘It’s no big
deal. Just go ahead and sign it. Everybody in the crew is
going to get one.’’ Therefore Denson signed his warning.
I find that Denson and Engel were in fact at work on the
lift when Zimmerman entered the area. As indicated, Miller,
Ricketson and Denson all so testified, and Zimmerman testi-
fied that two employees were working on a ladder. If Denson
believed that he was being selected for a recorded discipli-
nary warning, then it is probable that he would have filed
a grievance. However, neither he nor any other employee
filed a grievance. I also find significant, Steen’s testimony
which indicates that Bal came around only once with warn-
ings. I find that when Zimmerman checked the area, he saw
what appeared to be employees beginning their morning
break shortly before 9:30 a.m. He did not record any num-
bers, but simply went to Bal and demanded that Miller and
his crew be disciplined. In order to appease Zimmerman, Bal
wrote out disciplinary warnings for the entire crew. When
Bal realized that it would be impossible to determine which
if any employees took any early break, he assured Miller that
the matter would be forgotten. I find that the Company never
recorded the warnings, Ricketson and Denson had no dis-
ciplinary warnings in their personnel records, and in this re-
gard the organizational chart presented in evidence is false.
No employee was disciplined in connection with the dam-
aged wire cable incident. Nevertheless as indicated, Bal testi-
fied that he selected Ricketson and Denson for layoff in part
because of their alleged involvement in the incident. The
Company’s records do not indicate who worked on the wire
when it was damaged. They simply indicate that Foreman
Bob Lowe’s crew repulled the cable about 2 months after the
incident, and Foreman Miller initialed records to that effect.
Vice President Biallas testified in sum as follows: In July
Miller’s crew was assigned to pull six high voltage cables.
About September 1 Consolidated Paper tested the cables and
found them defective. The Company’s investigation deter-
mined that a cable was crushed when it was pulled in. The
employees should have reported the problem. Instead they
continued to pull and damage all the cables. The machine for
pulling met industry standards. Biallas supervised the re-
pulling, using the same equipment, and the cables tested sat-
isfactorily. Biallas did not know whether another crew
worked on the defective cable, did not investigate to find out,
and did not know whether Denson worked on the cable ter-
minal. Biallas and Project Manager Bal testified that the
damage cost the Company about $50,000, and the Company
presented records to that effect. Bal testified that Miller’s
crew was responsible for laying the damaged cable. He con-
ceded that Denson was not then in Miller’s crew, but never-
theless testified, without explanation, that Denson was in-
volved in terminating the cable. Ricketson testified in sum as
follows: In mid-August he learned that in early July, a high
voltage cable allegedly was not pulled properly and con-
1183M. J. ELECTRIC
3 On the basis of the threat by Bal and statement of Steen to Mil-
ler, and the false and pretextural reasons advanced by the Company
for the layoffs, General Counsel presented a prima facie case that
the Company terminated Ricketson and Denson because of their pro-
tected union and concerted activity. As the Company’s explanation
for selecting them for layoff was not credible, it follows that the
Company failed to meet its burden of establishing that it would have
terminated them in the absence of such activity.
sequently broke down. Ricketson’s crew worked on the
cable, but another contractor (Van Ert Electric) also worked
on the cable. The day shift began installing the cable and the
night shift terminated the cable. Ricketson’s crew did the
best they could in pulling the cable with what Ricketson con-
sidered to be barely adequate equipment. The multiple cables
were above ground, and any problems would be visible.
Ricketson did not see any cable wrinkle. Moreover, wrin-
kling does not necessarily harm a cable. Foreman Miller sub-
stantially corroborated Ricketson’s testimony. Miller testified
that the Company (including his crew) and Van Ert, and two
shifts worked on the cable, his crew did not have adequate
equipment, and consequently they made their own rigging.
Miller further testified that in mid-August he learned there
was a problem when Consolidated Paper tested the wire, the
cause of the problem was not determined, and the cable was
repulled by another crew. Denson testified that he was not
with the crew when the damage allegedly occurred.
If, as indicated by Biallas, the employees’ principal fault
was in failing to report damage to one cable, then it is prob-
able that the Company would have taken action against the
responsible crew foreman, and probably demoted the fore-
man, upon determining the cause of the problem. However,
the Company took no disciplinary action against Miller or
any of his crew. Indeed Bal admitted that Steve Traxinger,
who may have been acting as foreman at the time of the
damage, was subsequently promoted to foreman of a wire
pulling crew. It is also evident that the Company had no rea-
son to believe that Denson had anything to do with installa-
tion of the cable. If he did, then by the ostensible reasoning
of Biallas and Bal, the crew on which he was then working
(Dorski’s crew), including Dorski himself, should also have
been selected for layoff on November 21. However, only one
member of Dorski’s crew was laid off on that date. It would
make no sense to single out Denson and Ricketson for layoff
in whole or part because of the incident. No evidence was
presented that would indicate that members of Miller’s crew,
other than Ricketson and Denson, were laid off ahead of em-
ployees in other crews performing comparable work. Indeed
Bal admitted in his testimony that he did not know which
individuals in Miller’s crew as of November 21, were also
in his crew in July. Therefore I find that the Company did
not hold Miller or his crew responsible for the damage, and
I do not credit Biallas’ testimony that he told Bal to lay off
all the employees involved with the defective cables.
I am not persuaded that the Company’s decision to con-
duct a layoff on November 21 was discriminatorily moti-
vated, although the circumstances are at least suspicious. The
testimony of Biallas and Bal indicates that the Company ig-
nored the owner’s directive to reduce its work force in Sep-
tember, yet against its better judgement swiftly complied
with the owner’s directive of November 20, laying off 34
employees, and less than 4 weeks later, called the union hall
for 17 employees. However, I find that the Company’s pro-
fessed reasons for selecting Ricketson and Denson for layoff
were demonstrably false and pretextural. Ricketson was a
highly regarded employee who the Company considered
qualified to serve as a foreman. Denson had a satisfactory
work record. Neither employee had a recorded disciplinary
warning. Ricketson testified that he was never given a warn-
ing about his productivity or work attitude, and his testimony
was corroborated by Miller and Steen. As indicated, the
Company offered no explanation as to why Ricketson and
Denson were laid off while Deutsch and Engel were retained.
Bal’s lack of credibility with respect to his alleged reasons
for laying off Ricketson and Denson, confirmed in part by
the Company’s own professed records and Steen’s testimony,
demonstrates an overall lack of credibility with respect to the
subject matter of this proceeding.
Returning to the events of November 20 and 21, I find
with respect to the conversation in the Body Shop bar, Bal
initially refused to tell Denson whether he would be laid off.
However when Nagy left them alone, Bal let his hair down,
and told Denson that if he and Ricketson dropped the
charges against Clark they would not be included in the lay-
off. As of November 20 and 21, so far as Bal knew, the
charges were still pending. Clark knew, and probably told
Bal, that Ricketson told the trial board that the charges were
incorrect only in that Ricketson gave the wrong date. There-
fore Clark and Bal could and probably did reasonably as-
sume that the charges would remain pending or that
Ricketson would file new or amended charges. I further find,
as indicated in Denson’s affidavit, that he did not give Bal
an answer. As the charges were filed by Ricketson, Denson
would not likely commit himself without first consulting
with Ricketson. The next day, Bal having failed to receive
a satisfactory answer, Steen told Miller (as testified by Mil-
ler) that Ricketson and Denson were being laid off because
of the charges against Clark. I find as Denson indicated in
his affidavit, that Steen simply told Ricketson and Denson
that they knew why they were being laid off. It is unlikely
that Steen would express the real reason in the presence of
witnesses.
I find that the Company threatened to lay off Ricketson
and Denson unless they dropped the charges against Clark,
and laid off Ricketson and Denson because of their activities
in filing and witnessing the charges, and their failure to with-
draw the charges. Ricketson engaged in union and protected
concerted activities. Tracy Towing Line, 166 NLRB 81, 82
(1967), enfd. sub nom. NLRB v. Maritime Union Local 333,
417 F. 2d 965 (2d Cir. 1969); see also London Chop House,
264 NLRB 638, 639 (1982); Terpening Trucking Co., 271
NLRB 96, 102 (1984). Therefore the Company violated Sec-
tion 8(a)(1) and (3) of the Act.3
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminatorily terminating John Ricketson and
David Denson, thereby discouraging membership in the
Union, the Company has violated and is violating Section
8(a)(3) of the Act.
4. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
5 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.
6 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.’’
of the Act, the Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (3) of the Act, I shall recommend that
it be required to cease and desist therefrom and from like or
related conduct, and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The evidence indicates that the Company engages in nu-
merous projects, some of large scale, and has repeatedly em-
ployed traveler electricians, including Ricketson, for its Wis-
consin projects. The evidence also indicates that the Com-
pany sometimes transfers its better employees rather than lay
them off, as it did in 1990 with Ricketson. In these cir-
cumstances, I agree with General Counsel that a conventional
order of reinstatement with backpay is warranted, notwith-
standing that the No. 16 paper machine project was com-
pleted in July 1992. I find without merit, the Company’s ar-
gument (Br. 25) that backpay should be tolled for Denson
because he did not register with the Union after his layoff.
In fact, as indicated, he signed the out-of-work list on No-
vember 22. Even if he did not, the Company’s discriminatory
refusal to accept referral of Ricketson on December 16, indi-
cates that registering would have been futile. Denson acted
promptly to mitigate damages by proceeding to a job in Ten-
nessee.
Having found that the Company discriminatorily termi-
nated Ricketson and Denson, it will be recommended that the
Company be ordered to offer them immediate and full rein-
statement to their former jobs or, if such jobs 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 and benefits that they may
have suffered from the time of their discharge to the date of
the Company’s offer of reinstatement. I shall further rec-
ommend that the Company be ordered to expunge from its
records any reference to their unlawful terminations, to give
each of them written notice of such expunction, and to in-
form them that its unlawful conduct will not be used as a
basis for further personnel actions against them. Backpay
shall be computed in accordance with the formula approved
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4 It will also be recommended that the Company
be required to preserve and make available to the Board, or
its agents, on request, payroll and other records to facilitate
the computation of backpay and reimbursement due. I do not
agree with General Counsel’s request (Br. 36) that notices
should be sent to all employees currently on the Company’s
payroll and on its payroll as of November 21, 1991. Such
a requirement would be unduly burdensome. However I shall
recommend that the Company be ordered to post appropriate
notices at its Iron Mountain facility and each of its jobsite
locations.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, M. J. Electric, Inc., Iron Mountain,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating or otherwise discriminating against em-
ployees because they file internal union charges, give evi-
dence in support of such charges, or otherwise engage in
protected union or concerted activities for mutual aid and or
protection.
(b) Threatening employees with layoff or other reprisal for
engaging in such protected activity, or telling them that they
or other employees will be terminated because of such activ-
ity.
(c) In any like or related 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 necessary to ef-
fectuate the policies of the Act.
(a) Offer John Ricketson and David Denson immediate
and full reinstatement to their former jobs or, if such jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for losses they suf-
fered by reason of the discrimination against them as set
forth in the remedy section of this decision.
(b) Expunge from its files any reference to the termi-
nations of John Ricketson and David Denson, and notify
each of them in writing that this has been done and that evi-
dence of their unlawful termination will not be used as a
basis for future personnel actions against them.
(c) Preserve and, on 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 ana-
lyze the amount of backpay due.
(d) Post at its Iron Mountain, Michigan place of business
and at each of its jobsites, copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 30, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately on receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
1185M. J. ELECTRIC
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 terminate or otherwise discriminate against
employees because they file internal union charges, or other-
wise engage in protected union or concerted activities for
mutual aid and protection.
WE WILL NOT threaten employees with layoff or other re-
prisal for engaging in such protected activity, or tell them
that they or other employees will be terminated because of
such activity.
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.
WE WILL offer John Ricketson and David Denson imme-
diate and full reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole for losses
they suffered by reason of the discrimination against them,
with interest.
WE WILL expunge from our files any reference to the ter-
minations of John Ricketson and David Denson, and notify
them in writing that this has been done and that evidence of
their unlawful termination will not be used as a basis for fu-
ture personnel actions against them.
M. J. ELECTRIC, INC.